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
