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.) ( 2018 )

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.
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[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
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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.
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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
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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.
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[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.
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