In the Matter of A.W. (Child Alleged to be in Need of Services) and J.F. (Mother) and J.W. (Father) J.F. (Mother) and J.W. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 21 2019, 8:40 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 APPELLANTS ATTORNEYS FOR APPELLEE
Justin R. Wall Curtis T. Hill, Jr.
Wall Legal Services Attorney General of Indiana
Huntington, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of A.W. (Child May 21, 2019
Alleged to be in Need of Court of Appeals Case No.
Services) and J.F. (Mother) and 18A-JC-2885
J.W. (Father); Appeal from the Huntington
J.F. (Mother) 1 and J.W. (Father) Superior Court
The Honorable Jennifer E.
Appellants-Respondents,
Newton, Judge
v. Trial Court Cause No.
35D01-1605-JC-6
The Indiana Department of
Child Services,
1
Mother does not participate in this appeal but is a party of record.
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Appellee-Petitioner
May, Judge.
[1] J.W. (“Father”) appeals the dismissal of the Department of Child Services’
(“DCS”) petition to declare A.W. (“Child”) a Child in Need of Services
(“CHINS”) and the release of Child into the care of J.F. (“Mother”). Father
argues the trial court abused its discretion when it denied (1) his pre-hearing
motion for transport and (2) his verbal motion at the hearing to appear
telephonically. We affirm.
Facts and Procedural History
[2] Child was born April 27, 2010. On May 12, 2016, DCS filed a petition alleging
Child was a CHINS based on Father’s use of a taser on Child’s buttocks and
hand. DCS removed Child from Father’s care and placed her in foster care, as
Mother’s whereabouts were unknown. On June 28, 2016, the trial court
granted DCS’s motion to place Child with Mother, who by that time had been
located and deemed appropriate for placement.
[3] On October 14, 2016, DCS amended its CHINS petition to include allegations
that the State had charged Father with battery with a deadly weapon and that
the trial court in that matter had issued a no contact order between Father and
Child. On November 29, 2016, the trial court removed Child from Mother’s
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care based on allegations of physical abuse, housing instability, and non-
compliance with recommended therapy. Child was placed in relative
placement. The physical abuse allegations against Mother were subsequently
found to be unsubstantiated.
[4] On March 8, 2018, the trial court transferred the case to Huntington Superior
Court after the Circuit Court judge recused himself because he had previously
served as prosecutor on some of Father’s criminal matters. In the interim,
Father was convicted of offenses involving Child, including child molestation
and battery, and sentenced to a term of incarceration with an earliest possible
release date in 2069. On September 27, 2018, Mother filed a petition to change
custody in an underlying paternity case 2 involving Child.
[5] On October 29, 2018, Father filed a motion to transport requesting that he be
transported in lieu of telephonic participation to the hearing on Mother’s
change of custody petition. The trial court denied that motion. Father filed
another motion to transport on October 31, 2018, which the trial court also
denied. On November 2, 2018, Father filed pro se a response to Mother’s
request for a change in custody and filed an additional motion to transport.
[6] On November 13, 2018, DCS filed a motion for permanency that supported
Mother’s petition for change of custody in the paternity case. On November
14, 2018, the trial court held a review hearing on Mother’s request for change of
2
At some point in the proceedings, the paternity action and the CHINS actions were consolidated.
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custody and permanency in the CHINS matter. Father’s counsel appeared and
requested that Father be permitted to attend the hearing telephonically. The
trial court denied his request, as he had not submitted a written motion as
required by the trial court. Father’s counsel requested a continuance, which
was also denied. The trial court held the hearing in Father’s absence but
permitted Father’s counsel to present evidence and cross-examine witnesses.
[7] On November 29, the trial court ordered:
1. Permanency for the Child has been achieved through an
approved permanency plan of Custody to Non-custodial Parent
through Mother’s motion to change custody in the paternity case.
2. Mother has built her relationship with the [C]hild and is
currently having overnight visitation with the [C]hild. Mother
participates in the [C]hild’s therapy and in her own therapy.
3. Father has been convicted of child molestation and child
abuse. While the criminal case is under appeal, Father is
nonetheless convicted and not is [sic] a position to care for the
[C]hild.
4. The [C]hild is currently placed with relatives in Lake County
where Mother lives and such placement is willing to be a support
for the [C]hild and Mother.
5. Jurisdiction in this matter is hereby terminated without
prejudice and this cause of action is ordered closed. Any
hearings currently scheduled in this matter are hereby vacated.
(Appealed Order at 1.)
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Discussion and Decision
[8] Father argues the trial court violated his due process rights when it denied his
counsel’s verbal request to allow Father to appear telephonically and denied his
motion for continuance to allow Father to appear in person or telephonically.
It is well-settled, and Father acknowledges, that incarcerated parents have “no
absolute right to be physically present” at a CHINS proceeding. In re Involuntary
Termination of Parents Rights of S.P.H., 806 N.E.2d 874, 878 (Ind. Ct. App. 2004).
“[T]he decision whether to permit an incarcerated person to attend such a
hearing rests within the sound discretion of the trial court.” Id. Incarcerated
individuals involved in civil proceedings are able to appear by telephone, web-
camera, or counsel. Hill v. Duckworth, 679 N.E.2d 938, 940 n.1 (Ind. Ct. App.
1997).
[9] The decision to grant or deny a continuance rests within the sound discretion of
the juvenile court. Rowlett v. Vanderburgh Cty. Office of Family & Children, 841
N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. We will reverse the trial
court’s decision only for an abuse of that discretion. Id. An abuse of discretion
occurs when the party requesting the motion for continuance has shown good
cause for granting the motion and the juvenile court denies it. Id. No abuse of
discretion will be found when the moving party is not prejudiced by the denial
of its motion. Id.
[10] Here, the trial court denied Father’s multiple requests to be physically present at
the hearing regarding Mother’s petition for custody of Child and DCS’s motion
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for permanency. During the November 14 hearing, the following exchange
occurred between the trial court and Father’s counsel:
[Father’s Counsel]: My-my client, I on his behalf and him on his
own behalf had previously filed a Motion to Transport which
was - both were denied. Uh, it was our understanding that he
was gong to participate by telephone in this normal, uh, process
for the parents, if that are incarcerated at DOC, to participate by
telephone. . . .
[Trial Court]: Was there a Motion to Participate by Tel-
Telephone?
[Father’s Counsel]: No, Your Honor, its just standard-it-it-it-it’s
just standard process in these CHINS cases that typically DCS
arranges for the-the parent to participate by telephone. I know
that [Father] has expressed adamant obj-objections, uh, to the
ultimate issues, uh, or involving today’s hearing that the change
of placement custody with this child. I think it’s important for
him to be able to get on record, uh, what those objections are and
his thoughts and position on those particular issues in both
matters.
[Trial Court]: . . . Um, I-I don’t know what typically in
other cases, um, standard procedure. If I don’t have a request for
a Telephonic Hearing, I don’t normally have a telephone hearing
unless there’s a request for one.
(Tr. Vol. II at 5) (errors in original). Father’s counsel then asked for a
continuance so Father could be present or appear telephonically, and the trial
court denied that request.
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[11] On appeal, Father argues, “the customary procedure was for court staff (or
DCS) to arrange for telephonic participation from [sic] incarcerated parents.
For the Huntington County Superior Court, this trial court did not follow this
particular custom.” (Br. of Appellant at 13) (errors in original). However,
Father has not provided authority to support his claim that such a “custom”
exists, and thus his issue is waived for failure to make a cogent argument. See
Indiana Appellate Rule 46(A)(8)(a) (appellate argument must be supported by
relevant authority); and see In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014)
(failure to cite authority results in lack of cogent argument prompting waiver).
[12] Waiver notwithstanding, Father was not prejudiced by the trial court’s denial of
his motion to continue – the CHINS petition was dismissed, leaving intact
Father’s parenting rights to Child, and custody of Child could not continue in
Father as, at the time of the hearing, Father was incarcerated for crimes
committed against Child and was not scheduled for release for over thirty years.
Mother demonstrated her ability to provide for and parent Child to the
satisfaction of DCS, and Father has not demonstrated any error occurred
therein. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (unchallenged
findings “must be accepted as correct”). Finally, Father’s counsel was present
at the hearing and was able to provide argument and cross examine witnesses,
which we have long held protects a parent’s due process rights in a CHINS
proceeding. See In re E.E., 853 N.E.2d 1037, 1044 (Ind. Ct. App. 2006)
(parental due process rights not violated when parent is represented throughout
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the proceedings by counsel and counsel attends hearing and has opportunity to
cross-examine witnesses and offer argument), trans. denied.
Conclusion
[13] Father has waived his arguments regarding the denial of his request to appear
telephonically and his motion to continue for failure to make a cogent
argument. Waiver notwithstanding, the trial court’s decision neither prejudiced
Father nor violated his due process rights. Accordingly, we affirm.
[14] Affirmed.
Mathias, J., and Brown, J., concur.
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