MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
court except for the purpose of establishing                             Nov 02 2018, 6:09 am

the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: J.S., Ma.S.,                           November 2, 2018
and My.S., Children in Need of                           Court of Appeals Case No.
Services:                                                18A-JC-1244
                                                         Appeal from the Marion Superior
T.S. (Mother),                                           Court
Appellant-Respondent,                                    The Honorable Gary Chavers,
                                                         Judge Pro Tempore
        v.                                               The Honorable Danielle Gaughan,
                                                         Magistrate
The Indiana Department of                                Trial Court Cause Nos.
Child Services,                                          49D09-1710-JC-3429
                                                         49D09-1710-JC-3430
Appellee-Plaintiff.                                      49D09-1710-JC-3431




Court of Appeals of Indiana | Memorandum Decision 18A-JC-1244 | November 2, 2018                  Page 1 of 5
      Bradford, Judge.



                                          Case Summary
[1]   T.S. (“Mother”) is the mother of J.S., Ma.S., and My.S. (collectively, “the

      Children”). On October 13, 2017, the Indiana Department of Child Services

      (“DCS”) filed a petition alleging that the Children were children in need of

      services (“CHINS”). A fact-finding hearing was scheduled for April 10, 2018.

      Mother’s counsel requested a continuance of this hearing after Mother failed to

      appear. Noting that it had already continued the fact-finding hearing once

      before because Mother had failed to appear, the juvenile court denied Mother’s

      request and the hearing proceeded as scheduled. Afterward, the juvenile court

      found the Children to be CHINS. Mother contends on appeal that the denial of

      her request for a continuance deprived her of due process. Concluding

      otherwise, we affirm.



                            Facts and Procedural History
[2]   DCS became involved with Mother and the Children in September of 2017,

      after receiving “a report regarding the family being homeless.” Tr. Vol. II p. 8.

      Mother acknowledged the family was homeless and informed DCS that she

      struggled with untreated mental health issues. DCS and Mother developed a

      safety plan, whereby the Children would move in with maternal grandmother

      until Mother could secure housing.



      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1244 | November 2, 2018   Page 2 of 5
[3]   On or about October 11, 2017, Mother was stopped for driving a stolen vehicle.

      Mother was arrested, leaving no one to care for the Children. The Children

      were again placed with their maternal grandmother. Although Mother initially

      had visitation privileges with the Children, these privileges were revoked

      following troubling behavior by Mother.1


[4]   DCS filed a CHINS petition on October 13, 2017. On February 9, 2018,

      Mother failed to appear for the scheduled fact-finding hearing. The juvenile

      court granted Mother’s counsel’s request for a continuance of the hearing.

      After Mother, who remained homeless, again failed to appear for the fact-

      finding hearing on April 10, 2018, her counsel made a second request for a

      continuance. This request was denied by the juvenile court and the hearing

      proceeded as scheduled. The juvenile court found the Children to be CHINS

      and subsequently ordered Mother to engage in certain services.



                                 Discussion and Decision
[5]   Mother does not challenge the juvenile court’s determination that the Children

      are CHINS. She only contends that the juvenile court abused its discretion in

      denying her request for a continuance of the April 10, 2018 fact-finding hearing.


              [A] trial court’s decision to grant or deny a motion to continue is
              subject to abuse of discretion review. An abuse of discretion may




      1
        This behavior included breaking into maternal grandmother’s home, taking J.S. out of school without
      permission, and threatening the DCS case manager and service providers.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1244 | November 2, 2018               Page 3 of 5
              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.


      In re K.W., 12 N.E.3d 241, 243–44 (Ind. 2014) (internal citation and quotations

      omitted). In arguing that the juvenile court abused its discretion by denying her

      request for a continuance, Mother claims that she was deprived of due process.

      “Due process requires the opportunity to be heard at a meaningful time and in a

      meaningful manner.” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (internal

      quotation omitted).


[6]   In this case, Mother was represented by counsel who appeared on her behalf at

      the fact-finding hearing. Counsel requested a continuance of the hearing after

      Mother failed to appear, indicating that he did not know why Mother was not

      present. It is undisputed that Mother had received notice of the date, time, and

      location of the hearing. She had informed her home-based case manager the

      day before the hearing that she would attend. However, at 1:35 a.m. on the

      morning of the hearing, Mother notified her home-based case manager that she

      would not attend because she was ill. Attempts to reach Mother by telephone

      during the hearing were unsuccessful. After being unable to reach Mother or

      verify that she was ill, the juvenile court denied her counsel’s request for a

      continuance.


[7]   The Indiana Supreme Court has held that there is no absolute constitutional

      right for a parent to be present at a CHINS or termination hearing. See In re


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1244 | November 2, 2018   Page 4 of 5
      K.W., 12 N.E.3d at 248. Further, we have previously concluded that denial of a

      request for a continuance does not deny a parent due process following the

      parent’s failure to appear at a fact-finding hearing so long as the parent was

      represented by counsel in her absence. See In re E.E., 853 N.E.2d 1037, 1044

      (Ind. Ct. App. 2006). Applying this precedent to the facts of the instant matter,

      we conclude that Mother was not denied due process.


[8]   The judgment of the juvenile court is affirmed.


      Bailey, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1244 | November 2, 2018   Page 5 of 5
