ATTORNEYS FOR APPELLANT                             ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                 Gregory F. Zoeller
Ruth A. Johnson                                     Attorney General of Indiana
Indianapolis, Indiana
                                                    Robert J. Henke
                                                    David E. Corey                Jul 10 2014, 2:20 pm
                                                    Deputy Attorneys General
                                                    Indianapolis, Indiana

                                                    Patrick M. Rhodes
                                                    Indianapolis, Indiana




                                           In the
                        Indiana Supreme Court
                                    No. 49S02-1407-JT-458

IN RE THE INVOLUNTARY TERMINATION OF
THE PARENT-CHILD RELATIONSHIP OF K.W.,
A MINOR CHILD, AND HIS MOTHER, C.C.

K.W.,
                                                            Appellant (Respondent below),

                                               v.

INDIANA DEPARTMENT OF CHILD SERVICES
AND CHILD ADVOCATES, INC.,
                                                            Appellees (Petitioners below).


               Appeal from the Marion Superior Court, No. 49D09-1211-JT-42678
                             The Honorable Marilyn Moores, Judge
                           The Honorable Larry Bradley, Magistrate


        On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1305-JT-468
                                           July 10, 2014

David, Justice.


       Court proceedings in which the State seeks to regulate or terminate a parent’s relationship
with his or her children are among the most delicate and difficult that judicial officers and
attorneys must face. And we have repeatedly emphasized the importance of caution and care in
these sorts of cases—from all involved—as the repercussions that flow from them can be
devastating to every member of a family.


       Here, the State sought to terminate the parental rights of a father and mother whose
young child had been removed from their care. On the day of the termination hearing, the
mother was incarcerated in a local jail and her attorney sought a continuance until after the
mother might be released. The trial court denied this request and held the hearing in the
mother’s absence—the end result was the termination of her parental rights with respect to her
son. Under the facts and circumstances of this case, we conclude that the denial of the motion
for a continuance was an abuse of discretion.




                                Facts and Procedural History


       K.W. was born August 22, 2011. On September 27, 2011, the Department of Child
Services alleged that K.W. was a Child in Need of Services. On December 15, 2011, the
juvenile court adjudicated K.W. a CHINS. Then on November 1, 2012, after repeated instances
in which C.C. and K.W.’s father discontinued services, tested positive for drugs, or were
arrested, DCS filed a petition to terminate their parental rights with respect to K.W. After
several continuances, a TPR hearing was set for April 22, 2013.




                                                2
          C.C. was incarcerated the day of the hearing, and so her attorney moved for another
continuance. C.C.’s counsel stated that C.C. was in the Marion County Jail and had been there
for a few weeks, but she anticipated being released on May 1 to work release or home detention.
DCS objected, as did the guardian ad litem appointed to represent K.W.’s interests. After a brief
exchange, the trial court denied C.C.’s motion and held the TPR hearing with her absent (but still
represented by her attorney). On May 1, 2013, it issued an order terminating the parental rights
of C.C. and K.W.’s father with respect to K.W.


          C.C. appealed, arguing that the juvenile court violated her due process rights when it
denied her motion to continue and held the termination hearing without her being present. 1 She
also claimed that she received ineffective assistance of counsel because her attorney did not
request that she be transported from jail to attend the termination hearing and did not request that
C.C. be permitted to participate telephonically.


          The Court of Appeals affirmed the juvenile court’s denial of C.C.’s motion in an
unpublished memorandum decision, concluding that the evidence supporting the termination of
her parental rights was overwhelming. In re K.W., C.C. v. Ind. Dep’t of Child Servs., No.
49A02-1305-JT-468, 1 N.E.3d 221 at *4 (Ind. Ct. App. Dec. 31, 2013). It also determined that
C.C.’s counsel “could have done more to secure [C.C.’s] presence during the hearing, but
counsel’s performance was not so defective as to warrant a different outcome” in light of the
evidence presented at the termination hearing. Id. at *5.


          We now grant transfer, thereby vacating the Court of Appeals decision. Ind. Appellate
Rule 58(A). Because we find it dispositive, we address only the trial court’s denial of C.C.’s
request for a continuance.




1
    K.W.’s father did not participate in the appeal.



                                                       3
                                            Discussion


       Generally speaking, a trial court’s decision to grant or deny a motion to continue is
subject to abuse of discretion review. See Rowlett v. Vanderburgh Cnty. Office of Family &
Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. “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,” but “no abuse of discretion will be found when the moving party
has not demonstrated that he or she was prejudiced by the denial.” Id.


       But here, C.C.’s motion to continue was specifically aimed at allowing her to attend the
TPR hearing upon her release from incarceration. And though we have said that the decision to
permit an incarcerated parent to attend a TPR hearing is also within the sound discretion of the
trial court judge, the analysis is different and more involved. In re C.G., Z.G. v. Marion Cnty.
Dep’t of Child Servs., 954 N.E.2d 910, 922 (Ind. 2011). In In re C.G., we adopted the following
test to guide the trial court’s exercise of discretion when faced with such a question:


               [T]he trial court judge should balance the following factors: (1)
               [t]he delay resulting from parental attendance; (2) the need for an
               early determination of the matter; (3) the elapsed time during
               which the proceeding has been pending; (4) the best interests of the
               child(ren) in reference to the parent’s physical attendance at the
               termination hearing; (5) the reasonable availablility of the parent’s
               testimony through a means other than his or her attendance at the
               hearing; (6) the interests of the incarcerated parent in presenting
               his or her testimony in person rather than by alternate means; (7)
               the affect of the parent’s presence and personal participation in the
               proceedings upon the probability of his or her ultimate success on
               the merits; (8) the cost and inconvenience of transporting a parent
               from his or her place of incarceration to the courtroom; (9) any
               potential danger or security risk which may accompany the
               incarcerated parent’s transportation to or presence at the
               proceedings; (10) the inconvenience or detriment to parties or
               witnesses; and (11) any other relevant factors.

Id. at 922–23 (footnote omitted) (quoting State of W. Va. ex rel. Jeanette H. v. Pancake, 529
S.E.2d 865, 877–78 (W.Va. 2000)). C.C. argues that because the intent of her motion to

                                                 4
continue was to allow her, an incarcerated parent, to attend the TPR hearing, this test must be
applied.


        We disagree.      As DCS correctly points out, the test from In re C.G. applies to
consideration of a motion to transport an incarcerated parent to a TPR hearing—a procedure
C.C. did not undertake—and not to a motion to continue the TPR hearing until the parent is no
longer incarcerated. As such, application of this test was not compelled for the trial court here.


        Nevertheless, we find a number of those eleven factors to be helpful in our review of the
trial court’s exercise of its discretion. In other words, the factors will help illuminate our review
of whether C.C. showed good cause why her motion should be granted or if the denial was
otherwise “clearly against the logic and effect of the facts and circumstances before the court or
the reasonable, probable and actual deductions to be drawn therefrom.” Tapia v. State, 753
N.E.2d 581, 585 (Ind. 2001).


        As to factor (1), the delay that would result from a continuance until C.C. was released,
the hearing was set for April 22 and C.C. believed she would be released on May 1—a span of
time perhaps no longer than two weeks, and relatively insignificant given the weight of the
interests at stake. 2 And certainly, with respect to factor (2), there is always a desire for a speedy
determination in the adjudication of parental rights or other parent-child matters. But arguably
here, the need for a determination two weeks sooner is far less when the child in question was
less than two years old and already placed outside the home. As to factor (3), the CHINS
proceedings had been filed over eighteen months prior to the TPR hearing date, but the more
relevant timeframe is that DCS filed the TPR petition roughly five-and-a-half months prior to the




2
  Clearly if C.C. had not been released by then, or had been reincarcerated again, subsequent analysis of
this factor might weigh more heavily against her. Likewise there is no indication in the record of when
the next available hearing date would have been—it might have been logistically impossible to reset the
proceeding in such a short span of time.



                                                   5
hearing date. This is certainly not a short period of time, but again when dealing with a two-
year-old already in preadoptive care it leaves less of an impression. 3


        To the extent C.C.’s presence might provide a more accurate outcome, then absolutely
that would enure to K.W.’s best interests. But we have also said that “children have an interest
in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-
term, continuous relationships.” In re C.G., 954 N.E.2d at 917. So if the continuance risked an
unnecessary delay in K.W.’s adoption, factor (4) would certainly weigh against granting C.C.’s
motion. But as we said, the delay here was minimal and K.W. was already out of C.C.’s care
and in a preadoptive home. So in this instance, factor (4) does not carry great weight for either
side.


        Factor (5), the reasonable availability of other means by which a parent could participate
in such a proceeding, is a consideration that has arisen in prior cases. In Tillotson v. Clay Cnty.
Dept. of Family & Children, 777 N.E.2d 741, 746 (Ind. Ct. App. 2002), trans. denied, the Court
of Appeals found no due process violation when two parents—both incarcerated—were denied




3
  DCS correctly points out that the Indiana Code provides a 180-day window for a trial court to complete
the TPR hearing after a petition to terminate parental rights has been filed—a deadline that here would
pass before C.C.’s prospective release from incarceration. Ind. Code § 31-35-2-6(a)(2) (Supp. 2013). It
also is correct that failure to meet this 180-day deadline means the trial court, upon motion by a party,
“shall dismiss the petition to terminate the parent-child relationship without prejudice.” Ind. Code § 31-
35-2-6(b). Certainly the trial court was aware of this deadline, as it noted in response to C.C.’s motion
that the 180 days would run on April 30.

Three things, however, should keep this statutory framework from weighing against C.C. First, C.C.
would have to file such a motion to dismiss—an action we will not presume would occur after her own
continuance pushed the hearing over the deadline; and, as we note below, after she did not object to any
other continuance sought in the case (including one sought by DCS). Second, this missed deadline would
not end the matter as the petition, even if dismissed, would be dismissed without prejudice. DCS could
simply file a new petition to terminate C.C.’s parental rights. Third, as we discuss below, the fact that
this case was backed up against the statutory deadline is not entirely (or even mostly) C.C.’s fault.
Though we do not discount the significance of the family illness that caused DCS to seek an emergency
continuance, the fact remains that DCS is at least somewhat accountable for the time crunch present here.



                                                    6
requests to be transported to a TPR hearing. But at the same time, it cautioned that “in future
cases, trial courts would be well advised to fully consider alternative procedures by which an
incarcerated parent could meaningfully participate in the termination hearing when the parent
cannot be physically present.”      Id.   These alternatives might conceivably include “using a
speaker phone at the hearing or continuing the hearing after the State has presented its case and
allowing the parent time to review a transcript or audio tape of the hearing and then respond to
allegations raised by the State’s witnesses.” Id. at n.7; see also In re C.G., 954 N.E.2d at 920
(citing Tillotson and noting that incarcerated parent participated in proceeding telephonically).


       We recognize that C.C.’s counsel at the TPR proceeding did not make a specific request
to have C.C. participate telephonically or by video teleconference in lieu of a continuance.
Certainly DCS knew this was an alternative, as it filed a motion—that the trial court granted—to
have two of its out-of-state witnesses testify telephonically. This would have been the best
practice for C.C.’s counsel to at least attempt to pursue, and we do not encourage attorneys in the
future to ignore it in TPR proceedings—or not proactively pursue it in advance of the hearing.
See Tillotson, 777 N.E.2d at 745–46 (incarcerated parents filed motions for transport but did not
seek alternative procedures until “eleventh-hour request,” by which point “no arrangements had
been made with the prisons or the court” and request “clearly would have resulted in delay”).
Here the record does not reflect when C.C.’s counsel learned of C.C.’s incarceration, but we
think only an eleventh-hour discovery of a client’s inability to attend such a hearing would
justify not bringing the matter to the trial court’s attention sooner.


       But nevertheless, and without needing to explore the extent to which this failure rendered
that attorney’s performance deficient or ineffective, we note that here those alternative methods
were reasonably and readily available—and already being used for other witnesses in the same
proceeding. Had the trial court indicated its willingness to postpone the hearing a few hours or a
few days in order to allow C.C. to participate via telephone, and had C.C.’s counsel refused such




                                                   7
a compromise and insisted on a continuance until C.C could be physically present, this might
have weighed in favor of the judge’s action in this case and against C.C. But no such alternative
was suggested by the trial court or by DCS. 4


        Factor (6) is related, in that it addresses the incarcerated parent’s interest in presenting
testimony in person rather than through alternative means. But as we said, there were no
alternative means proposed or suggested though they were readily available.                    So when
considering this factor, we must be cognizant of the fact that here it actually represents the
choice between presenting testimony in person and not presenting testimony at all. When
viewed that way, it certainly weighs heavily in C.C.’s favor.


        And to be sure, with respect to factor (7) there is significant value in a parent’s personal
participation in the proceedings—whether it ultimately sways the outcome or not. Even when a
parent participates by teleconference, we have noted the difficulties presented in that “trial
judges are in the best place to assess witness credibility, and by not having a parent present at a
termination hearing, a trial judge is not as easily able to ascertain the credibility of a witness over
the phone.” In re C.G., 954 N.E.2d at 920. These challenges are obviously exacerbated when
the parent does not participate in the proceeding at all. Certainly all reasonable efforts should be
made to ensure that parents are present during a life- and family-altering event.




4
  And notwithstanding the fact that C.C. could not attend the hearing because of her own actions leading
to her incarceration, we do not see this as an instance in which a party has engaged in “willful, knowing,
and voluntary misconduct aimed at manipulating the court system for one’s own benefit” so as to justify
an in absentia trial. Hawkins v. State, 982 N.E.2d 997, 1000 (Ind. 2013). We do not intend to excuse
whatever misconduct constituted her probation violation, but the punishment for that misconduct was
spending time in jail—and C.C. was paying that price. We cannot also tack on as an additional punitive
measure that C.C. should simply accept being omitted from a court proceeding challenging her right to be
a parent to her child.



                                                    8
         It is true that the record shows that C.C. was in and out of jail, and in and out of services,
throughout the pendency of the CHINS and TPR proceedings. Neither of those trends bodes
well for maintaining one’s parental rights. And the record also shows that C.C.’s counsel aptly
cross-examined DCS’s witnesses and presented brief testimony from C.C.’s mother concerning
C.C.’s intent in the adoption process. But regardless, these efforts fall well short of telling C.C.’s
side of the story or presenting her explanations for the events DCS outlined.


         In this particular case, factors (8) and (9) are less relevant to our review as C.C. was not
seeking transport to the courtroom; she was seeking a continuance to enable her to attend at a
later date. But we have commented in the past about the relatively low cost and complexity of
transporting incarcerated parents within Marion County.            Id. at 921 (acknowledging “the
potential significant cost of transporting Mother from Henderson, Kentucky, to Indianapolis,
Indiana,” for TPR hearing, but noting “our analysis may have been different had Mother been
across town in the Marion County Jail”). And we also recognize that in some cases there may be
valid security concerns or dangers presented by transporting an incarcerated parent to a TPR
hearing. But here there is no indication that, for example, the TPR proceedings are based in any
way on C.C. abusing K.W.—such that C.C.’s presence in proximity to K.W. would be
undesirable—or that C.C. presents some sort of general threat or menace to others, such that
allowing her out of the strict confines of incarceration would be unsafe to the community as a
whole.


         We also recognize that even a two-week continuance would be an inconvenience on the
trial court, the attorneys, the witnesses, and others participating in the hearing. But at the same
time, the impact on the witnesses furthest from the courtroom—DCS’s out-of-state witnesses—
would be mitigated as those two individuals were already testifying telephonically. So to the
extent factor (10) looks at the inconvenience of parties or witnesses, we know that such an
inconvenience would be present. But it would be no greater than would otherwise occur from
any continuance.




                                                   9
       Moreover, here the hearing had already been continued twice—and only once (and then
only partially) at C.C.’s request. The TPR hearing was initially set for January 25, 2013. At a
pre-trial hearing on January 17, 2013, C.C. and K.W.’s father (separately) requested a
continuance. It is not clear from the record what C.C.’s grounds for requesting the continuance
were, but the trial court noted that she was not incarcerated and was participating in services at
the time. K.W.’s father, however, requested the continuance as he was at that time incarcerated
in Hendricks County and set to be released the following week—but would then be transferred to
the Marion County Jail on an open warrant there. Both DCS and K.W.’s guardian ad litem
objected to the requests, but the trial court continued the TPR hearing until March 12.


       Then on March 11, DCS’s attorney filed an emergency motion for a continuance because
of a family illness that would prevent her from being in court the next day, and she was unable to
obtain substitute counsel on such short notice. Neither C.C. nor K.W.’s father objected to this
request, and the trial court reset the TPR hearing for April 22. Thus, any inconvenience here
would have been slight—and certainly not the only time it would have occurred in the course of
the proceeding.


       In sum, we find that the delay that would have resulted from the continuance could have
been as short as two weeks. This would have been a minimal inconvenience to all others
involved, although we recognize that the record does not indicate that the courtroom, staff,
parties, and witnesses would have been available on such notice; neither is it a certainty that C.C.
would have been released from incarceration. But at the same time, this proceeding had not been
overly drawn-out or delayed, and in fact the proceeding had been held up at DCS’s request for
nearly as long as it had been delayed as a result of C.C.’s prior motion.


       Moreover, despite the desire for finality in these sorts of cases and the wish to mitigate
any additional unnecessary stress that prolonging such a proceeding can place on a child, this is
not a case where there is an overwhelming sense of urgency. K.W. was two years old and he is
not, for example, trying to enroll in school or another activity that is time-sensitive. And he is




                                                 10
not at risk of physical or emotional abuse as a result of any delay; he is already in preadoptive
care and is, by all accounts, quite healthy and doing well.


        And we also find that C.C. had a substantially significant interest in being present at the
proceeding.    While her counsel certainly could have—and probably should have—already
pursued alternative approaches to satisfy this interest, such as a motion to transport C.C. to the
courtroom or a request to have her participate telephonically, by the time C.C.’s motion to
continue was made the trial court was presented only one choice: continue the trial (i.e., allow
C.C. to be present or use an alternative method) or proceed without her voice being heard at all.


        So rather than continue the TPR proceeding a short time until C.C.’s release date, or to
accommodate a readily available alternative means for her to present testimony, the trial court
opted to carry out a proceeding by which C.C.’s fundamental rights to parental autonomy were
challenged, attacked, and taken away—without C.C.’s personal participation in any way. When
viewed in such a light, we cannot help but find that C.C. showed good cause why her motion
should be granted, and to do otherwise was clearly against the logic and circumstances of the
case.


        But as we said above, it also true that no abuse of discretion will be found in the denial of
a motion to continue if the movant was not prejudiced as a result. See Rowlett, 841 N.E.2d at
619. DCS argues extensively about how C.C.’s presence would not have impacted the ultimate
result of the trial, in the context of analyzing factor (7) of the In re C.G. test. And the Court of
Appeals viewed the matter in a similar fashion. See In re K.W., 1 N.E.3d 221 at *4. But under
the circumstances of this case, we do not think that the notion of prejudice can be viewed that
narrowly or parallel a harmless error analysis.       The harm here was more than merely the
additional weight C.C.’s personal participation might have carried at the hearing.


        Even though there is no absolute constitutional right for a parent to be present at a
termination hearing, In re C.G., 954 N.E.2d at 921, this does not invariably correlate to a
conclusion that it is permissible to omit the parent from participating in the process entirely.


                                                 11
“[T]he involuntary termination of parental rights is an extreme measure that is designed to be
used as a last resort when all other reasonable efforts have failed,” and the State may only
undertake this measure in a manner that comports with the standards of due process. Id. at 916–
17. So “[i]f anything, persons faced with forced dissolution of their parental rights have a more
critical need for procedural protections than do those resisting state intervention into ongoing
family affairs.” Id. at 917 (quoting Santosky v. Kramer, 455 U.S. 745, 753–54 (1982)).


       Thus, though a parent may not have an absolute right to be present at a TPR hearing,
“such parent does have the right to be heard at a meaningful time and in a meaningful manner.”
Tillotson, 777 N.E.2d at 745. This in fact is the essence—and the aim—of the entire concept of
Due Process. See In re C.G., 954 N.E.2d at 917. And here, in a proceeding challenging her
fitness as a parent to her child, C.C. was not heard at any time or in any manner.


       C.C. was not physically present, nor was an effort made to bring her to the courtroom.
No attempt was made to secure her participation by readily available means like telephone or
video. And no other form of statements from her, such as deposition transcripts or affidavits,
were introduced into evidence or otherwise put before the trial court. So while it is true that
C.C.’s attorney attempted to mount a defense by cross-examining DCS witnesses and putting on
one of his own, that is a far cry from saying that C.C. was heard at a meaningful time and in a
meaningful manner and far from being fundamentally fair—and it was therefore prejudicial.




                                           Conclusion


       Under the facts and circumstances of this case, we conclude that the trial court here
abused its discretion by denying C.C.’s motion to continue the TPR hearing and proceeding
instead without her participation. We therefore vacate that portion of the trial court’s order
terminating C.C.’s parental rights with respect to her son, K.W.


Dickson, C.J., Rucker, Massa, and Rush, JJ., concur.


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