In the Matter of the Termination of the Parent-Child Relationship of M.D., E.M.D., E.J.D., and G.D. (Minor Children) and J.D. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 13 2018, 9:07 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool Curtis T. Hill, Jr.
Vanderpool Law Firm, P.C. Attorney General of Indiana
Warsaw, Indiana
Evan Matthew Comer
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 13, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of M.D., E.M.D., E.J.D., and 85A02-1709-JT-2180
G.D. (Minor Children) and Appeal from the Wabash Circuit
J.D. (Father), Court
The Honorable Robert R.
Appellant-Respondent,
McCallen, III, Judge
v. Trial Court Cause Nos.
85C01-1604-JT-6
85C01-1604-JT-7
Indiana Department of Child
85C01-1604-JT-8
Services, 85C01-1604-JT-9
Appellee-Petitioner.
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 1 of 6
[1] J.D. (“Father”) appeals the Wabash Circuit Court’s order terminating his
parental rights to his four children. Father argues that the trial court abused its
discretion when it failed to continue the fact-finding hearing after observing
Father’s agitated mental state.
[2] We affirm.
Facts and Procedural History
[3] Father has four children. M.D., born in 2001, E.M.D., born in 2003, E.J.D.,
born in 2005, and G.M.D., born in 2007. In 2011, Father was charged with
molesting E.M.D., and he pleaded guilty to Class A felony child molesting in
2013. Father is serving his sentence in the Department of Correction, and his
earliest anticipated release date is in 2033.
[4] The children remained with their mother until June 2014. On June 19, 2014,
the Department of Child Services (“DCS”) filed petitions alleging that the
children were children in need of services because they had been abandoned,
and they lacked food and shelter. The children were removed from their
mother’s care and placed in foster care. DCS offered the children’s mother
services, but her participation was inconsistent.
[5] DCS did not offer Father services due to his incarceration. Father has not
attempted to communicate with the children while he has been incarcerated
and has not seen the children for several years. Father participated in
counseling and parenting classes through the Department of Correction, but
claims he no longer needs counseling.
Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 2 of 6
[6] On April 22, 2016, DCS filed a petition to terminate Father’s parental rights.1
After several continuances, the fact-finding hearing was held on August 23,
2017.
[7] At the hearing, the trial court asked Father’s attorney if Father was going to
voluntarily relinquish his parental rights. Father’s attorney replied that he was
having a hard time having meaningful communication with him.
. . . [H]e’s. . . very agitated and withdrawn. His moods are
unstable today. I’ve inquired about [] what medication he’s on.
The Jail’s indicated that he’s received his prescribed medicine. . .
I don’t think . . . he’s in a frame of mind where a voluntary
termination should be taken by the Court. In any event, he’s
indicated he doesn’t want to do that.
Tr. p. 9–10. Father’s attorney then stated that Father’s agitation and
communication issues were impairing his “ability to effectively represent him
today.” Id. at 10.
[8] The trial court responded that the court had “significant knowledge of [Father]
and his . . . antics” because the court presided over Father’s criminal
proceedings. Id. The court noted that Father’s behavior was unpredictable and
“somewhat hysterical” but that Father was “fully aware of what he was doing.”
Therefore, the court stated, “I don’t think that [h]is antics ought to
unnecessarily delay the proceedings today.” Id. And the court determined that
1
The children’s mother voluntarily relinquished her parental rights at the August 23, 2017 fact-finding
hearing.
Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 3 of 6
it would continue with the fact-finding hearing. The court also denied Father’s
request for a new lawyer.
[9] On the same day as the fact-finding hearing, the trial court issued an order
terminating Father’s parental rights. The trial court found that the children
could not be placed with Father because he is incarcerated and his earliest
possible release date is in 2033. Further, the court found that E.M.D. had
suffered “immense trauma” as a result of being molested by Father, and Father
“has a total disregard for what is best for his children as evidenced by his
decision to molest [E.M.D].” Appellant’s App. p. 9.
[10] Father now appeals.
Discussion and Decision
[11] Father’s sole argument on appeal is that the trial court abused its discretion
when it held the fact-finding hearing after observing Father’s behavior. Father
contends that his attorney’s statement concerning his impaired ability to
represent Father due to his agitation and inability to effectively communicate
was, in effect, a motion to continue the fact-finding hearing.
[12] But Father never specifically asked the court to continue the fact-finding
hearing. Therefore, he waived this issue for review. See Ind. Appellate Rule
46(A)(8)(a); In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (“In order to
properly preserve an issue on appeal, a party must, at a minimum, ‘show that it
gave the trial court a bona fide opportunity to pass upon the merits of the claim
before seeking an opinion on appeal.’”), trans. denied (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 4 of 6
[13] Even if we agreed with Father that his attorney’s statements constituted a
request for a continuance, we observe that a trial court’s ruling on a non-
statutory motion for a continuance is within the sound discretion of the trial
court. J.M. v. Marion Cty. Office of Family and Children, 802 N.E.2d 40, 43 (Ind.
Ct. App. 2004), trans. denied. And the court’s decision “will be reversed only
upon a showing of an abuse of discretion and prejudice resulting from such an
abuse.” Id.; Rowlett v. Vanderburgh Cty. Office of Family and Children, 841 N.E.2d
615, 619 (Ind. Ct. App. 2006) (“[N]o abuse of discretion will be found when the
moving party has not demonstrated that he or she was prejudiced by the
denial.”), trans. denied.
[14] We are also aware that there is a cost in delaying the adjudication of
termination cases in that they impose a strain upon the children involved and
exact “an intangible cost” to their lives. In re E.E., 853 N.E.2d 1037, 1043 (Ind.
Ct. App. 2006), trans. denied. While continuances may certainly be necessary to
ensure the protection of a parent’s due process rights, courts must also be
cognizant of the strain these delays place on a child. In re C.C., 788 N.E.2d 847,
853 (Ind. Ct. App. 2003), trans. denied.
[15] Under the facts and circumstances of this case, Father cannot demonstrate that
he was prejudiced when the trial court refused to continue the fact-finding
hearing. Father is incarcerated until 2033 for Class A felony child molesting.
Father molested his oldest daughter, and she continues to suffer significant
trauma from the molestation. Importantly, all of the children will have reached
the age of eighteen years before Father is released from prison.
Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 5 of 6
[16] Furthermore, the trial court believed based on past experience with Father that
he was faking his agitation and irrational mental state. Tr. p. 10. Father
participated in the hearing, and he understood and answered the questions that
were asked of him. After reviewing the record, we agree with the trial court’s
assessment that Father was mentally aware and understood the proceedings.
The children deserve permanency after being in foster care for over three years.
Because Father has not established that he was prejudiced when the trial court
failed to continue the fact-finding hearing, we affirm the trial court’s order
terminating Father’s parental rights to M.D., E.M.D., E.H.D, and G.D.
[17] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 85A02-1709-JT-2180 | March 13, 2018 Page 6 of 6