MEMORANDUM

DECISION
                                                                 Jun 04 2015, 10:15 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Erin L. Berger                                       Gregory F. Zoeller
Evansville, Indiana                                  Attorney General of Indiana

                                                     Robert J. Henke
                                                     Abigail R. Miller
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                 June 4, 2015
Termination of the Parent-                           Court of Appeals Cause No.
Child Relationship of,                               82A01-1410-JT-456
                                                     Appeal from the Vanderburgh Superior
M.W., (Minor Child)                                  Court
                                                     Cause No. 82D01-1406-JT-66

          and,                                       The Honorable Brett J. Niemeier, Judge
                                                     The Honorable Renee Ferguson,
                                                     Magistrate
J.W.,      (Mother)

Appellant-Respondent,



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              v.



      The Indiana Department of
      Child Services,
      Appellee-Petitioner.




      Barnes, Judge.


                                             Case Summary
[1]   J.W. (“Mother”) appeals the trial court’s termination of her parental rights to

      M.W. We affirm.


                                                     Issue
[2]   Mother raises one issue, which we restate as whether the trial court abused its

      discretion by denying her motion to continue.


                                                     Facts
[3]   M.W. was born in December 2012, and shortly after M.W.’s birth, the Indiana

      Department of Child Services (“DCS”) filed a petition alleging that M.W. was a

      child in need of services (“CHINS”) based on Mother’s erratic behavior,

      Mother’s positive drug test, and Mother’s arrest on outstanding warrants.




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      Mother had a pending CHINS case for another of her children, A.W. 1 In

      January 2013, the trial court found that M.W. was a CHINS. In February

      2013, the trial court entered a dispositional order that ordered Mother to

      participate in services. Between February and June 2013, Mother failed to

      make progress on the services and visited M.W. only one time. Beginning in

      June 2013, Mother was incarcerated on various charges, including dealing in

      methamphetamine, and received mental health treatment during her

      incarceration.


[4]   In June 2014, DCS filed a petition to terminate Mother’s parental rights to

      M.W. At the July 29, 2014 pre-trial hearing, Mother requested a continuance

      of the scheduled August 6, 2014 hearing on the termination petition. Mother

      contended that she expected to be released from incarceration in October 2014,

      that she had received extensive mental health treatment, and that she desired to

      participate in services upon her release. The State objected to the continuance,

      arguing that Mother had a considerable amount of time prior to her

      incarceration to participate in services and failed to do so. The trial court

      denied Mother’s motion for a continuance. Mother did not renew her motion

      to continue at the August 6, 2014 hearing. After the hearing, the trial court

      entered findings of fact and conclusions thereon granting the termination of

      parental rights. Mother now appeals.




      1
        Mother’s parental rights to A.W. were terminated in November 2013. On appeal, we affirmed the
      termination of parental rights. In re A.W., 82A05-1311-JT-581 (Ind. Ct. App. July 30, 2014).

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                                                      Analysis
[5]   Mother argues that the trial court erred by denying her motion for a

      continuance of the termination of parental rights hearing. A trial court’s

      decision to grant or deny a motion to continue is subject to abuse of discretion

      review. In re K.W., 12 N.E.3d 241, 243-44 (Ind. 2014). “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. at 244.


[6]   In support of her argument, Mother relies on Rowlett v. Vanderburgh Cnty. Office

      of Family & Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied.2 In

      Rowlett, we concluded that the trial court abused its discretion by denying the

      father’s motion to continue a hearing on the termination of his parental rights.

      The father was set to be released from incarceration six weeks after the hearing,

      and he had not had the opportunity to participate in services directed at

      reunifying him with his children. During his incarceration, the father had

      participated in numerous services and programs that would be helpful to him in

      reaching his goal of reunification with his children. Also, the children had been

      in the care and custody of their maternal grandmother since they were

      determined to be CHINS nearly three years prior to the hearing, and the




      2
        Mother also relies on A.J. v. Marion County Office of Family & Children, 881 N.E.2d 706 (Ind. Ct. App. 2008),
      trans. denied. However, A.J. did not involve a motion for continuance.

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      children were to be adopted by their maternal grandmother. Thus, we noted

      that the continuation of the dispositional hearing until sometime after the father

      was released would have had little immediate effect upon the children. We

      concluded that, under these circumstances, the trial court abused its discretion

      by denying the father’s motion for continuance.


[7]   This case, however, is distinguishable from Rowlett. Here, Mother was

      incarcerated awaiting trial. At the pre-trial hearing, Mother’s attorney stated:

      “She tells me that she has trial in October of this year, so just a couple of

      months from where we are now. And expects that even if she is unsuccessful at

      trial that her sentence will be time served. So she expects to be released from

      incarceration in October of 2014.” Tr. p. 5. Unlike in Rowlett, where the father

      was set to be released in six weeks, Mother’s release in October was speculative.

      There was no guarantee that Mother’s trial would take place in October, and

      there was no guarantee as to her sentence. Moreover, even if Mother was

      released in October, Mother would still have to demonstrate over many months

      her ability to maintain her mental health, avoid substance abuse, avoid

      additional criminal arrests and convictions, and participate in services. More

      importantly, in Rowlett, the father had not been able to participate in services

      due to his incarceration. Here, Mother had the opportunity for several months

      to participate in services and visit M.W. prior to her incarceration, but she

      failed to do so.


[8]   We acknowledge that Mother claims to have received mental health treatment

      and claims that she is doing better. However, she presented no specifics of that

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       treatment at the time of her motion to continue. Given these facts, we are

       unwilling to keep M.W. on a shelf until Mother is capable of caring for her

       properly. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989). The

       trial court did not abuse its discretion by denying Mother’s motion to continue

       because she has not shown good cause or that she was prejudiced by the denial.


                                                 Conclusion
[9]    The trial court did not abuse its discretion by denying Mother’s motion to

       continue the hearing. We affirm.


[10]   Affirmed.


[11]   Riley, J., and Bailey, J., concur.




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