In the Matter of the Termination of the Parent-Child Relationship of J.B. (Minor Child), and L v. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 7, 2019
• Docket: 18A-JT-2698
• 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 Jun 07 2019, 9:07 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Brooklyn, Indiana Attorney General of Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination June 7, 2019 of the Parent-Child Relationship Court of Appeals Case No. of J.B. (Minor Child), 18A-JT-2698 and Appeal from the Fayette Circuit Court L.V. (Mother), The Honorable Hubert Branstetter Appellant-Respondent, Judge Trial Court Cause No. v. 21C01-1711-JT-440

The Indiana Department of Child Services, Appellee-Petitioner.

Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 1 of 12 Case Summary [1] L.V. (“Mother”) appeals following the termination of her parental rights to J.B.

(“the Child”). We affirm.

Issue [2] Mother’s sole issue on appeal is whether the trial court abused its discretion in

denying Mother’s motion to continue the termination fact-finding hearing.

Facts [3] Mother and C.B. (“Father”) are the biological parents of the Child, who was

born in September 2009. The Fayette County Department of Child Services

(“DCS”) received an allegation that: (1) Mother and Father administered

inappropriate discipline to the Child; (2) Mother and Father used

methamphetamine while the Child was in their care; and (3) Father faced

criminal charges of battery to person under fourteen years of age. DCS

removed the Child from Mother’s and Father’s care on an emergency basis on

June 30, 2016. 1

[4] On July 5, 2016, DCS filed a petition alleging that the Child was a child in need

of services (“CHINS”). On November 22, 2016, after a hearing, the trial court

adjudicated the Child as a CHINS. The trial court granted wardship of the

Child to DCS pursuant to a dispositional order on December 5, 2016. Pursuant

1 The Child has not returned to Mother’s or Father’s care since her removal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 2 of 12 to the dispositional order, Mother was ordered to: (1) refrain from drug use; (2)

submit to random drug screens; (3) obey the law; (4) maintain contact with

DCS; (5) submit to unannounced home visits; (6) maintain suitable housing; (7)

secure steady employment; (8) complete a parenting assessment and substance

abuse assessment; (9) participate in home-based counseling; (10) attend

supervised visitation; and (11) provide a safe and secure environment for the

Child.

[5] During the pendency of the CHINS matter, Mother was largely non-compliant

with DCS’s case plan. Mother’s substance abuse continued largely unabated.

She refused drug screens and tested positive numerous times for “unprescribed

amphetamines and methamphetamines.” Tr. p. 41. Mother was arrested “a

few times” and was “in and out of jail for her continued substance abuse”

during the CHINS pendency. Id. at 41-42. Service providers discharged

Mother from services for her lack of engagement. Mother failed to maintain

contact with DCS, did not attend supervised visits with the Child, and failed to

appear for scheduled review and permanency hearings.

[6] On November 14, 2017, DCS filed a petition to terminate Mother’s parental

rights. The termination fact-finding hearing was initially scheduled for

February 12, 2018. Mother moved for a continuance, which was granted. The

termination fact-finding hearing was rescheduled and, again, Mother moved for

a continuance on April 17, 2018, which was granted. On June 26, 2018,

Mother sought a third continuance, which was granted on July 10, 2018.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 3 of 12 Mother filed a fourth motion to continue on July 11, 2018, which was granted

on August 10, 2018.

[7] The trial court ultimately re-set Mother’s fact-finding hearing for October 2,

2018. Mother did not appear, but she was represented by counsel. At the

outset of the hearing, DCS advised the trial court that:

[DCS] [ ] did file and mail out a notice of the hearing to terminate the parent-child relationship and that was mailed out on [ ] September 20, 2018 and it was file stamped September 19th of 2018 [ ] and that was mailed to [M]other’s [ ] last known mailing address which is [redacted] and that’s in accordance with the Certificate of Service that was also filed with that [ ] notice of hearing . . . .

Tr. p. 13. Counsel for DCS also advised the trial court that “[Mother] was in

some contact with the family case manager [ ] at the end of last week[,]” and

the family case manager was prepared to testify that Mother was aware of the

fact-finding hearing. Id.

[8] Counsel for Mother advised the trial court that, on August 13, 2018, he sent a

letter to Mother notifying her of the hearing date. Citing Mother’s absence,

counsel for Mother then moved for a fifth continuance. DCS objected, and the

trial court denied the motion for continuance. Counsel for Mother did not

allege lack of statutory notice of the termination fact-finding hearing.

[9] DCS called witnesses and presented evidence in Mother’s absence. Father,

who was incarcerated at the time of the fact-finding hearing, was present and

testified. Family case manager Molly Parkhurst testified that she had spoken Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 4 of 12 with Mother the day before the fact-finding hearing: “[Mother] just told

[Parkhurst] that [Mother] wanted to go to rehab, that [Mother] needed to go to

rehab [ ], and that [Mother] had a[n] [active] warrant” for violation of

probation. Id. at 38. Parkhurst testified further that Mother’s absence was not

due to incarceration.

[10] Defense counsel lodged an objection to the termination fact-finding hearing

proceeding in Mother’s absence and stated, “I’m in a difficult position. I have a

client who’s not here today. It’s very [] important part of her life and it’s a very

significant hearing in having it without her is uncomfortable.” Id. at 44. On

October 16, 2018, the trial court entered an order, containing findings of fact

and conclusions of law, wherein the court terminated Mother’s parental rights

to J.B. Mother now appeals.

Analysis [11] Mother argues that the trial court erred in denying her motion to continue the

termination fact-finding hearing. The Fourteenth Amendment to the United

States Constitution protects the traditional rights of parents to establish a home

and raise their children. In re K.T.K. v. Indiana Dept. of Child Services, Dearborn

County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A] parent’s interest in the

upbringing of [his or her] child is ‘perhaps the oldest of the fundamental liberty

interests recognized by th[e] [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530

U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of course, that parental

interests are not absolute and must be subordinated to the child’s best interests

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 5 of 12 when determining the proper disposition of a petition to terminate parental

rights. Id. Thus, “‘[p]arental rights may be terminated when the parents are

unable or unwilling to meet their parental responsibilities by failing to provide

for the child’s immediate and long-term needs.’” In re K.T.K., 989 N.E.2d at

1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

denied).

[12] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.

2011). We consider only the evidence and reasonable inferences that are most

favorable to the judgment. Id. We must also give “due regard” to the trial

court’s unique opportunity to judge the credibility of the witnesses. Id.

(quoting Ind. Trial Rule 52(A)).

[13] “Generally speaking, 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). 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; however, no abuse of discretion will be found when the moving

party has not demonstrated that he or she was prejudiced by the denial. Rowlett

v. Vanderburgh Cty. Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct.

App. 2006) (internal citations omitted), trans. denied.

[14] Mother argues that, by allowing the termination fact-finding hearing to proceed

in her absence, the trial court allowed a “fundamentally unfair” and

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 6 of 12 “prejudicial” proceeding, at which “no one testified that [Mother] knew about

the hearing”; no one attempted to reach Mother by telephone; Mother’s counsel

“presented no evidence on Mother’s behalf[;] and Mother’s counsel made a

brief closing argument primarily about Father.” Appellant’s Br. p. 10. We

cannot agree.

[15] Parents do not have a constitutional right to be present at a termination hearing.

K.W., 12 N.E.3d at 249. Indiana Code Section 31-35-2-6.5 does require that

DCS “shall” send notice to a parent at least ten days before the termination of

parental rights fact-finding hearing. We have previously stated: “[f]ailure to

comply with statutory notice is [ ] a defense that must be asserted[;] [o]nce

placed in issue, [DCS] bears the burden of proving compliance with the

statute.” In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012).

[16] In seeking the continuance, counsel for Mother did not argue that DCS failed to

make proper statutory notice. After DCS introduced evidence of its compliance

with the statutory notice requirement, coupled with FCM Parkhurst’s testimony

that she believed that Mother had notice of the hearing, counsel for Mother

advised the trial court that he, too, mailed notice of the hearing to Mother in

advance of the termination fact-finding hearing. Moreover, although Mother

expresses her dissatisfaction with counsel’s efforts on her behalf, the fact

remains that Mother’s counsel appeared and cross-examined DCS’s witnesses

on her behalf at the termination fact-finding hearing. See In re E.E., 853 N.E.2d

1037, 1044 (Ind. Ct. App. 2006) (determining that the trial court did not deprive

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 7 of 12 a parent of due process by proceeding with a termination hearing in the parent’s

absence where the parent’s counsel participated in the hearing), trans. denied.

[17] Mother relies heavily upon our Supreme Court’s discussion of the absence of a

parent from termination proceedings in K.W. In K.W., the mother was

incarcerated and sought continuance of her termination fact-finding

proceedings until her release in approximately two weeks. The trial court

denied the mother’s motion for a continuance and conducted the termination

fact-finding hearing in the mother’s absence, which resulted in the termination

of the mother’s parental rights.

[18] On appeal, we affirmed, citing overwhelming evidence supporting the

termination of the mother’s parental rights. We also acknowledged that,

although the mother’s counsel could have done more to secure her participation

through alternative means, “‘counsel’s performance was not so defective as to

warrant a different outcome’ in light of the evidence presented at the

termination hearing.” K.W., 12 N.E.3d at 243. Our Supreme Court granted

transfer and subsequently vacated the portion of the trial court’s order that

terminated the mother’s parental rights, finding that the proceedings were

fundamentally unfair, prejudicial, and failed to comport with standards of due

process.

[19] In analyzing the mother’s claim in K.W., our Supreme Court employed the

eleven-factor test it adopted in In Re C.G., Z.G. v. Marion Cnty. Dep’t of Child

Servs., 954 N.E.2d 910, 922 (Ind. 2011), albeit in the context of reviewing a

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 8 of 12 motion to transport an incarcerated parent to a termination fact-finding hearing.

The K.W. Court acknowledged the factual distinctions between K.W. and C.G.,

but found that the C.G. test “illuminate[d] [ ] review of whether [the mother]

showed good cause why her motion [for continuance] should be granted or if

the denial was otherwise ‘clearly against the logic and effect of the facts and

circumstances before the court or the reasonable, probable and actual

deductions to be drawn therefrom.’” Id.

[20] The C.G. factors are as follows:

(1) [t]he delay resulting from parental attendance; (2) the need for an early determination of the matter; (3) the elapsed time during which the proceeding has been pending; (4) the best interests of the child(ren) in reference to the parent’s physical attendance at the termination hearing; (5) the reasonable availability of the parent’s testimony through a means other than his or her attendance at the hearing; (6) the interests of the incarcerated parent in presenting his or her testimony in person rather than by alternate means; (7) the [e]ffect of the parent’s presence and personal participation in the proceedings upon the probability of his or her ultimate success on the merits; (8) the cost and inconvenience of transporting a parent from his or her place of incarceration to the courtroom; (9) any potential danger or security risk which may accompany the incarcerated parent’s transportation to or presence at the proceedings; (10) the inconvenience or detriment to parties or witnesses; and (11) any other relevant factors.

Id. We address the relevant factors in turn.

[21] Factor (1)—delay resulting from parental attendance—is difficult to quantify

because Mother failed to appear of her own volition, and not due to an Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 9 of 12 incarceration of finite duration, as in K.W. Regarding factor (2), the need for an

early determination of the matter, although there was no specific urgency, the

Child was nine years old and in need of permanency, after a two-and-one-half-

year CHINS pendency.

[22] As to factor (3), the elapsed time during which the proceeding was pending, the

CHINS matter remained pending from June 2016 through October 2018; and

specifically, the fact-finding hearing—initially scheduled for February 2018—

did not occur until October 2018, due to Mother’s four continuances.

Regarding factor (4), the effect of Mother’s presence on the best interest of the

Child, we find that the Child’s need for permanency weighs against Mother’s

need for a fifth continuance.

[23] As to factor (5), the reasonable availability of Mother’s testimony through

alternate means, we find that her counsel should have attempted to secure her

telephonic participation. This factor weighs in Mother’s favor. Regarding

factor (6), the interests of the incarcerated parent in presenting his or her

testimony in person, rather than by alternate means, Mother undeniably had a

significant interest in presenting testimony in person, rather than via alternative

means; however, as noted above, Mother’s absence was of her own volition.

[24] Regarding the seventh factor—the effect of Mother’s absence and participation

on her likelihood to succeed on the merits—the record is clear that Mother was

largely unsuccessful in complying with DCS’s case plan and was discharged by

various service providers for her lack of engagement. Although Mother would

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 10 of 12 have faced a daunting challenge in making her case, her presence—to provide

explanations and context—would have surpassed what defense counsel could

accomplish in her absence.

[25] Factors (8) and (9) are inapplicable here; we proceed to the tenth factor – the

inconvenience or detriment to the parties or witnesses. Here, Mother moved

for, and the trial court granted, four continuances of the termination fact-

finding. Mother, thereby, delayed the trial court’s permanency determination

as to the Child and the Child’s relative/pre-adoptive caregiver. Mother also

repeatedly inconvenienced the witnesses, including caseworkers and service

providers, as well as the attorneys involved.

[26] After weighing the instructive C.G. factors, we conclude that the trial court’s

denial of Mother’s motion for a continuance was not clearly against the logic

and effect of the circumstances before the court. The instant case is factually

distinguishable from K.W. K.W. involved a parent whose incarceration

thwarted her ability to participate in the termination fact-finding hearing

involving her child. The K.W. Court deemed it fundamentally unfair and

prejudicial for a termination fact-finding hearing to be conducted in the

mother’s involuntary absence. Here, Mother received notice but apparently

elected against attending the fact-finding hearing because she had an active

warrant. Unlike the K.W. matter, which “had not been overly drawn-out or

delayed,” the termination fact-finding hearing in the instant case was

considerably delayed. Id. at 248.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 11 of 12 [27] After weighing the instructive C.G. factors, we conclude that the trial court’s

denial of Mother’s motion for a continuance was not clearly against the logic

and effect of the circumstances before the court. We decline to find that the

trial court’s denial of Mother’s fifth motion for a continuance rendered the

proceedings fundamentally unfair, prejudicial, or contrary to standards of due

Conclusion [28] The trial court did not abuse its discretion in denying Mother’s motion to

continue the termination fact-finding hearing. We affirm.

[29] Affirmed.

Crone, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019 Page 12 of 12