 MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                           Sep 30 2016, 9:30 am
this Memorandum Decision shall not be
                                                                     CLERK
regarded as precedent or cited before any                        Indiana Supreme Court
                                                                    Court of Appeals
court except for the purpose of establishing                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             September 30, 2016
Parent-Child Relationship of                             Court of Appeals Case No.
E.R. (minor child)                                       54A01-1604-JT-926
and                                                      Appeal from the Montgomery
                                                         Circuit Court
J.R. (father),
                                                         The Honorable Harry A. Siamas,
Appellant-Respondent,                                    Judge

        v.                                               Trial Court Cause Nos.
                                                         54C01-1510-JT-258

The Indiana Department of
Child Services,
Appellee-Petitioner.




Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 54A01-1604-JT-926| September 30, 2016   Page 1 of 8
                                          Statement of the Case
[1]   J.R. (“Father”) appeals the involuntary termination of the parent-child

      relationship with his son, E.R.1 On appeal, Father does not challenge any of

      the trial court’s findings or conclusions supporting its order to involuntarily

      terminate his parent-child relationship with E.R. Instead, Father—who had

      notice of the termination hearing, appeared telephonically for the hearing, and

      was represented by counsel throughout the hearing—argues that the trial court

      abused its discretion by denying his oral request for a continuance of the

      termination hearing made on the day of the hearing. Because Father did not

      show any good cause for the continuance or show that he would be prejudiced,

      we conclude that the trial court did not abuse its discretion by denying the oral

      request for a continuance and affirm the trial court’s judgment.


[2]   We affirm.


                                                         Issue
               Whether the trial court abused its discretion by denying Father’s
               oral request for a continuance made on the day of the termination
               hearing.




      1
        E.R.’s mother, P.F., consented to the voluntary termination of her parental rights; thus, she is not involved
      in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1604-JT-926| September 30, 2016              Page 2 of 8
                                                          Facts
[3]   When E.R. was born in December 2013, Father signed an affidavit of paternity.

      A month later, Father moved out of Indiana and apparently did not have

      regular visitation with E.R. or pay child support.


[4]   In March 2014, Mother was incarcerated and appointed E.R.’s maternal

      grandmother (“Maternal Grandmother”) to be his temporary guardian. The

      following month, in April 2014, the Indiana Department of Child Services

      (“DCS”) removed E.R. from Maternal Grandmother’s home after she was

      arrested on a warrant.2 Thereafter, DCS filed a petition alleging that E.R. was a

      child in need of services (“CHINS”). During the initial hearing, Father waived

      his right to appointed counsel. Following a fact-finding hearing, the trial court

      determined that E.R. was a CHINS. The trial court ordered Father to, among

      other things, have a parenting assessment and supervised visitation with E.R.

      Father did not keep in contact with DCS, did not participate in services, and

      had only a few supervised visits with E.R.


[5]   In October 2015, DCS filed a petition to terminate Father’s parental rights to

      E.R. DCS initially had trouble serving Father with the petition because he had

      failed to provide an updated address; however, after hiring an investigator to

      locate him, DCS was eventually able to serve him with the petition. Thereafter,

      on January 19, 2016, the trial court held an initial hearing at which Father

      appeared telephonically. The trial court offered and then appointed counsel for


      2
          Another child was also removed from the home, but that child is not the child of Father.


      Court of Appeals of Indiana | Memorandum Decision 54A01-1604-JT-926| September 30, 2016        Page 3 of 8
      Father. The trial court took Father’s address, which was in Kentucky, and

      informed Father that his appointed attorney would contact him. The trial court

      instructed Father that he would “need to take it upon [him]self to contact [the

      attorney] when [he] g[o]t that so [he] c[ould] discuss this” matter. (Tr. 8). The

      trial court also scheduled the termination hearing for April 14, 2016 at 1:00

      p.m., and Father responded, “That sounds great.” (Tr. 11). The trial court

      again informed Father to contact his public defender to discuss the case with

      him.3


[6]   On April 14, 2016, the trial court held the termination hearing. At the time of

      the hearing, E.R. was a little over two years old. Father appeared

      telephonically at the hearing and was represented by counsel. At the beginning

      of the hearing, the trial court noted that Father “was afforded the opportunity

      prior to the hearing to speak with [his counsel] by telephone.” (Tr. 14).

      Thereafter, Father’s counsel asked for Father to be sworn in so that he could

      ask Father some preliminary questions. During questioning, Father stated that

      he had moved to Evansville, Indiana and confirmed that he had received a

      letter from counsel around January 26, 2016. Father, however, stated that his

      “soon to be ex-wife” had shredded the letter, leaving him with no contact

      information for his attorney. (Tr. 16). Father also stated that she had kicked

      him out of the house and that he had been “pretty much homeless for three

      months.” (Tr. 17). Father’s counsel then made an oral motion to continue the

      3
        During this initial hearing, Father told the trial court that, although he had signed the affidavit of paternity
      at E.R.’s birth, he did not know if E.R. was his child. When Father requested to have a paternity test, the
      trial court instructed him to consult with his appointed attorney.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1604-JT-926| September 30, 2016                 Page 4 of 8
      hearing. DCS objected to the continuance, noting Father’s prior notice of the

      hearing and his lack of involvement and contact with E.R. and DCS. The trial

      court denied Father’s oral request to continue the hearing, stating, in relevant

      part:


              The court finds the matter was set for initial hearing on January
              nineteenth, two thousand sixteen. [Father] appeared and was
              given [by] this court [the] date of April fourteenth of two
              thousand sixteen at one p.m. . . . [Father] admits that he received
              a letter from [his appointed counsel] and contact information
              from [counsel]. He states at some point thereafter it was
              shredded. However, he apparently did not contact [his appointed
              counsel]. [Father] had the telephone number certainly of this
              court. He could have contacted the court to ask who his public
              defender was if he had forgotten or didn’t have that information.
              He did not do that. The matter’s been set for this hearing for
              almost ninety days and [Father]’s personal circumstances do not
              persuade the court that a continuance should be granted. He’s
              known about the hearing for ninety days. The court does not
              find good cause to continue the matter and we will proceed.

      (Tr. 18).


[7]   The trial court then had DCS present its witnesses, and Father’s counsel cross-

      examined them. Prior to Father’s presentation of witnesses, the trial court gave

      Father another opportunity to speak privately with his counsel by phone.

      Thereafter, the trial court entered a detailed order involuntarily terminating

      Father’s parental rights to E.R. Father now appeals.




      Court of Appeals of Indiana | Memorandum Decision 54A01-1604-JT-926| September 30, 2016   Page 5 of 8
                                                   Decision
[8]    On appeal, Father does not challenge any of the trial court’s findings or

       conclusions supporting its order to involuntary terminate his parent-child

       relationship with E.R. Instead, he presents a single issue for our review,

       contending that the trial court abused its discretion by denying his oral request

       for a continuance.


[9]    Pursuant to our Indiana Trial Rules, “[u]pon [a] motion” to continue a trial

       filed by a party, a trial court has “discretion” to “postpone[] or continue[]” the

       trial. Ind. Trial Rule 53.5. “[A] trial court shall grant a continuance upon

       motion and ‘a showing of good cause established by affidavit or other

       evidence.’” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009) (quoting Ind.

       Trial Rule 53.5) (emphasis added). “Generally speaking, 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) (citing 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. (quoting

       Rowlett, 841 N.E.2d at 619).


[10]   “There are no mechanical tests for deciding when a denial of a continuance is

       so arbitrary as to violate due process. The answer must be found in the


       Court of Appeals of Indiana | Memorandum Decision 54A01-1604-JT-926| September 30, 2016   Page 6 of 8
       circumstances present in every case, particularly in the reasons presented to the

       trial judge at the time the request was denied.” J.P. v. G. M., 14 N.E.3d 786,

       790 (Ind. Ct. App. 2014) (quoting Ungar v. Sarafite, 376 U.S. 575, 589-590

       (1964), reh’g denied). Continuances to allow time for additional preparation are

       generally disfavored and require a showing of “good cause” and how “it is in

       the interests of justice.” Williams v. State, 681 N.E.2d 195, 202 (Ind. 1997). See

       also Clodfelder v. Walker, 125 N.E.2d 799, 800 (Ind. 1955) (explaining that a

       motion for continuance should be made at the earliest practicable time after

       knowledge of the necessity for a continuance). Furthermore, “[a] continuance

       requested for the first time on the morning of trial is not favored.” Lewis v.

       State, 512 N.E.2d 1092, 1094 (Ind. 1987).


[11]   Father argues that the trial court’s denial of his oral continuance request was an

       abuse of discretion despite the facts that he had notice of the hearing, was able

       to participate in the hearing telephonically, and was represented by counsel

       throughout the hearing. He does not contend that he had, or that he presented,

       any “good cause” for the continuance. Nor does he show how he was

       prejudiced by the denial.


[12]   We conclude, however, that the trial court’s denial of Father’s continuance

       request was not an abuse of discretion. Father requested the continuance by an

       oral motion on the day of trial and not by a motion supported by a “showing of

       good cause” as required by Trial Rule 53.5. Indeed, the trial court specifically

       determined that Father had failed to show good cause. Additionally, Father

       did not assert that he would be prejudiced. Instead, he indicated that he was

       Court of Appeals of Indiana | Memorandum Decision 54A01-1604-JT-926| September 30, 2016   Page 7 of 8
       aware of the hearing date and had received his appointed counsel’s letter.

       When denying Father’s continuance request, the trial court noted that Father

       had received notice of the termination hearing ninety days prior to the hearing

       and that he had received his attorney’s contact information but had failed to

       contact counsel. Furthermore, the trial court gave Father the opportunity to

       consult with his counsel by telephone prior to the hearing and again prior to

       presenting his case-in-chief. Given the deference to the trial court’s decision on

       this matter, we conclude that the trial court did not abuse its discretion by

       denying Father’s counsel’s oral request for a continuance made on the day of

       the termination hearing. See, e.g., Gunashekar, 915 N.E.2d at 956 (affirming the

       trial court’s denial of a motion to continue a bench trial).


[13]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1604-JT-926| September 30, 2016   Page 8 of 8
