In the Matter of the Termination of the Parent-Child Relationship of W.M., Legal Father, and K.M., Minor Child, W.M. v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 8, 2018
• Docket: 18A-JT-167
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 08 2018, 8:51 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Derick W. Steele Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Kokomo, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination August 8, 2018 of the Parent-Child Relationship Court of Appeals Case No. of W.M., Legal Father, and 18A-JT-167 K.M., Minor Child, Appeal from the W.M., Howard Circuit Court The Honorable Appellant-Respondent, Lynn Murray, Judge v. Trial Court Cause No. 34C01-1707-JT-241 Indiana Department of Child Services, Appellee-Petitioner.

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018 Page 1 of 6 [1] W.M. (“Legal Father”) appeals the juvenile court’s order terminating his legal

parental rights to his minor child, K.M. (“Child”). Legal Father raises one issue

on appeal, which we restate as whether the juvenile court abused its discretion

when it did not grant his request for a continuance.

[2] We affirm.

Facts and Procedural History [3] Child was born on November 5, 2015. Appellant’s App. Vol. 2 at 27, 36. Legal

Father signed a paternity affidavit following Child’s birth and was shown as the

father on Child’s birth certificate. Id. at 36. On January 11, 2016, Child was

removed from S.K.’s (“Mother”) care after Mother was found to have overdosed

on heroin while Child was in her arms; Mother was later arrested. Id. at 37-38.

Mother was charged with four counts of criminal conduct related to her possession

of illegal substances, paraphernalia, and neglect of dependent. Pet’r’s Ex. 3. When

the child was removed from Mother’s care, Legal Father “was incarcerated for

multiple drug charges, and ultimately pled guilty to Resisting Law Enforcement

and Possession of Methamphetamine.” Appellant’s App. Vol. 2 at 38.

[4] On January 13, 2016, Indiana Department of Child Services (“DCS”) filed a

petition alleging that Child was a child in need of services (“CHINS”), and Child

was placed in foster care. Id. at 29, 32, 125. On February 29, 2016, during a

scheduled fact finding hearing, Legal Father and Mother stipulated that Child was

a CHINS. Id. at 38. The dispositional hearing was held on March 14, 2016, and

the juvenile court ordered reunification services. Id. at 38-39. At the hearing, the

Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018 Page 2 of 6 juvenile court also ordered DCS to conduct DNA testing to ascertain whether

T.W., a man alleging he was Child’s father, was Child’s biological father. Id. at

40.

[5] In March 2016, Legal Father was released from incarceration. Id. at 41. He did

not immediately contact DCS, and DCS found it hard to engage Legal Father. Id.

In April 2016, Legal Father began to participate in services, but his engagement

was “abysmal.” Id. at 43.

[6] On April 5, 2016, DNA reports confirmed that T.W. (“Biological Father”) was

Child’s biological father. Id. at 42. The juvenile court issued an order on June 13,

2016, excluding Legal Father as a party to the CHINS case and directing that DCS

was no longer required to provide services to Legal Father. Id. at 42. The juvenile

court no longer identified Legal Father as Child’s father in its CHINS orders.

Pet’r’s Ex. at 157-58, 162-64, 165-66, 168-69; Appellant’s App. Vol. 2 at 14-15.

[7] Legal Father only visited with Child twice during the underlying case, and the last

time was in May 2016. In the same month, Legal Father was arrested for

maintaining a common nuisance and incarcerated until November 2017.

Appellant’s App. Vol. 2 at 42.

[8] In July 2017, DCS filed its termination petition, and the juvenile court held the

initial hearing on July 24, 2017. Id. at 36. Mother and Biological Father had

already consented to the adoption of Child. Id. Legal Father’s newly appointed

counsel filed a motion requesting a continuance to prepare for the termination of

parental rights hearing, which the juvenile court granted on September 27, 2017.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018 Page 3 of 6 Id. at 4, 24, 26. The termination hearing, originally set for October 2, 2017, was

rescheduled for December 4, 2017. Id. at 26. During Legal Father’s testimony at

trial, he stated “I’d like to just start everything all over again and give it another

shot”. Tr. at 32. Legal Father requested additional time to get involved in services

to prove to the court that he could provide Child with a safe, loving environment

that she is entitled to. Tr. at 45. On December 20, 2017, the juvenile court entered

its termination decree. Id. at 35-52.

Discussion and Decision [9] On appeal, Legal Father does not challenge the juvenile court’s findings of fact or

conclusions thereon, but he argues that the juvenile court abused its discretion

when it failed to grant him a continuance when he asked to have more time to

complete services at the termination hearing., Id. at 44-45. 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; 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.

[10] Legal Father argues that the juvenile court abused its discretion when it failed to

grant him a continuance when he stated that he wanted to start all over again and

requested to have additional time. Id. at 32, 44, 45. Father had filed a previous

Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018 Page 4 of 6 request for a continuance, and that request was granted on September 27, 2017.

This request was made in the middle of Legal Father’s testimony at the hearing to

terminate his parental rights.

[11] Legal Father argues that his case is similar to Rowlett v. Vanderburgh County Office of

Family & Children, 841 N.E.2d 615 (Ind. Ct. App. 2006). In Rowlett, Father

appealed the juvenile court’s decision denying his motion for continuance of the

termination of parental rights hearing scheduled for April 12, 2005. Id. at 618.

Father had been incarcerated for almost three years and was due to be released in

June 2005. Id. at 619. This court found that the trial court abused its discretion

because father had not had the opportunity to participate in services offered by

DCS or to demonstrate his fitness as a parent. Id. Furthermore, this court

indicated that Rowlett’s release date was just six weeks from the date of the

termination of parental rights hearing. Id.

[12] Unlike Rowlett, Legal Father here was provided with an opportunity to participate

in services and visitation prior to the termination proceeding; however, he failed to

complete services and did not visit with Child regularly. Courtney Calhoun

(“Calhoun”), Homebased Case Manager, testified that Legal Father cancelled a

number of his appointments because he was prioritizing his work over visitation

with Child. Tr. at 20. Calhoun stated that Legal Father was supposed to have six

hours a week of visitation with Child; however, he only participated in two visits

in two months. Id. at 21.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018 Page 5 of 6 [13] Legal Father’s visitation with Child was infrequent for various reasons. On three

or four occasions, he tested positive on drug screens. Id. On another, he missed

visitation because he forgot about an appointment to put up a fence for a

landscaping client. Id. In addition, Legal Father missed three or four case

management appointments with Calhoun. Id. Ultimately, Legal Father’s referral

for services and visitation with Calhoun was cancelled because he was arrested

again for violating his probation.

[14] Legal Father contends that he did not receive services upon his release from jail in

November 2017; however, DCS was no longer required to provide him with

services. He was not Child’s biological father and was no longer a party to the

CHINS case. Unlike Rowlett, Legal Father did not participate in services while

incarcerated that would be helpful to him in reaching his goal of reunification with

Child. Instead, Legal Father received an infraction and was placed on lockdown

for an assault.

[15] The trial court did not abuse its discretion when it denied Legal Father’s request

for a continuance.

Affirmed.

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018 Page 6 of 6