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.


Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019                             Page 1 of 8
      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


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019   Page 2 of 8
      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.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019                      Page 3 of 8
      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.)

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019   Page 4 of 8
                                  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


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019   Page 5 of 8
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.




Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019   Page 6 of 8
[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




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019   Page 7 of 8
       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.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019   Page 8 of 8
