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.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018                      Page 1 of 6
[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

         Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018   Page 2 of 6
      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.

            Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018   Page 3 of 6
      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


         Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018   Page 4 of 6
   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.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018   Page 5 of 6
[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.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-167 | August 8, 2018   Page 6 of 6
