Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                             Dec 11 2014, 9:55 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN                                     GREGORY F. ZOELLER
Westfield, Indiana                                 Attorney General of Indiana

                                                   ROBERT J. HENKE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                   DAVID DICKMEYER
                                                   Certified Legal Intern

                                IN THE
                      COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF                )
THE PARENT-CHILD RELATIONSHIP OF:                  )
                                                   )
B.B., Minor Child,                                 )
                                                   )
       and                                         )
                                                   )
M.B., Mother,                                      )
                                                   )
       Appellant-Respondent,                       )
                                                   )
                vs.                                )       No. 49A04-1404-JT-149
                                                   )
THE INDIANA DEPARTMENT OF CHILD                    )
SERVICES,                                          )
                                                   )
       Appellee-Petitioner.                        )

                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Marilyn Moores, Judge
                          The Honorable Larry Bradley, Magistrate
                             Cause No. 49D09-1309-JT-16219

                                       December 11, 2014
                   MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

          M.B. (Mother) appeals the involuntary termination of her parental rights to B.B.

(Child). Mother1 argues the trial court abused its discretion when it denied her motion to

continue. We affirm.

                             FACTS AND PROCEDURAL HISTORY

          Child was born to Mother on October 31, 2011. On August 29, 2012, the Department

of Child Services (DCS) removed Child from Mother’s care because Mother was arrested

and there was no one to care for Child. On October 26, Mother admitted Child was a Child

in Need of Services (CHINS) because Mother was a minor, lacked financial means to

provide for Child’s needs, was incarcerated, and tested positive for an illegal substance. On

November 16, the trial court adjudicated Child as a CHINS and ordered Mother to participate

in services such as home based therapy, substance abuse treatment, and assistance to obtain

stable employment and housing.

          On February 15, 2013, the trial court held a status hearing. It found Mother had not

participated in services, and, at Mother’s request, ordered Mother to complete in-patient drug

treatment. The trial court held three more status hearings but Mother did not appear at them.

She was incarcerated throughout the proceedings, first in Marion County and then in Shelby

County.

          On September 9, 2013, DCS filed for termination of the parent-child relationship. In


1
    Child’s father is unknown.
                                               2
anticipation of the February 27, 2014, evidentiary hearing on the petition to terminate,

Mother requested transport from the Marion County jail to the Marion County courthouse.

The trial court granted that request, but a week before the hearing Mother was relocated to

Shelby County. On February 20, Mother requested transport from the Shelby County jail,

which the trial court denied. The trial court then stated Mother could appear at the February

27 hearing either via videoconference or telephone.

          On February 27, the trial court held an evidentiary hearing and Mother appeared by

telephone. She requested a continuance until she could appear in person, and the trial court

denied her request. On March 6, the trial court ordered the termination of Mother’s parental

rights.

                               DISCUSSION AND DECISION

          We review termination of parental rights with great deference. In re K.S., 750 N.E.2d

832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge credibility of

witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we

consider only the evidence and reasonable inferences most favorable to the judgment. Id. In

deference to the trial court’s unique position to assess the evidence, we will set aside a

judgment terminating a parent-child relationship only if it is clearly erroneous. In re L.S.,

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S. 1161 (2002).

          The decision to grant or deny a continuance rests within the sound discretion of the

juvenile court. Rowlett v. Vanderburgh Cnty. Office of Family and Children, 841 N.E.2d

615, 619 (Ind. Ct. App. 2006), trans. denied. We will reverse only for an abuse of that

                                                3
discretion. Id. An abuse of discretion occurs when the party requesting the 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. Mother argues the trial court abused its discretion when it denied her motion to continue

because she could not be physically present for the termination hearing.

       Although the “traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution,” In re M.B., 666

N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied, a parent does not have a constitutional

right to be physically present at a termination hearing. In re C.G., 954 N.E.2d 910, 921 (Ind.

2011). Whether to permit an incarcerated parent to attend a termination hearing is within the

sound discretion of the juvenile court. Id. at 922. In exercising that discretion,

       the 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 availability 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 [sic] 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.

       Mother relies on In re K.W., in which our Indiana Supreme Court reversed the

                                               4
involuntary termination of the relationship between K.W. and his mother because the juvenile

court abused its discretion when it denied the mother’s request for a continuance because she

could not be transported from prison to the termination hearing. 12 N.E.3d 241, 249 (Ind.

2014). However, K.W. is distinguishable. In K.W., the mother was not permitted to appear

by telephone as was Mother in the case before us. In K.W., the mother’s release from prison

was imminent, whereas in the case before us, it was unclear when Mother would be released

because her pre-trial hearing was scheduled four weeks after the termination hearing.2

        The trial court did not abuse its discretion when it denied Mother’s request for a

continuance. Accordingly, we affirm.

        Affirmed.

BARNES, J., and PYLE, J., concur.




2
  K.W. also included an analysis of the factors set forth in In re C.G, 954 N.E.2d at 922-23. With regards to
those factors, we note Mother had failed to attend three prior hearings, and was not incarcerated at the time of
those hearings; her release date from her incarceration at the time of the hearing was unknown; the proceedings
were nearing the statutory 180-day time limit for a termination proceeding; Mother had counsel at the hearing,
and had been able to consult with counsel prior to the hearing; Mother was able to testify during the hearing;
and there was sufficient evidence to prove termination was proper, and Mother does not appeal any of the trial
court’s findings.
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