MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  Oct 16 2015, 6:27 am
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
William Byer, Jr.                                         Gregory F. Zoeller
Byer & Byer                                               Attorney General of Indiana
Anderson, Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          October 16, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.B. (Minor Child),                                    48A02-1503-JT-200
                                                          Appeal from the Madison Circuit
and                                                       Court
                                                          The Honorable G. George Pancol,
S.B. (Mother),                                            Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          48C02-1410-JT-66
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015         Page 1 of 17
      Crone, Judge.


                                                Case Summary
[1]   S.B. (“Mother”) appeals the trial court’s termination of her parental relationship

      with her two-year-old son J.B. She first challenges the trial court’s denial of her

      oral motion for continuance on the day of the final hearing. She also submits

      that the trial court erred in ordering the termination of her relationship with J.B.

      Finding that the trial court acted within its discretion in denying Mother’s last-

      minute motion for continuance and did not clearly err in finding that clear and

      convincing evidence supported the termination of the parent-child relationship,

      we affirm.


                                  Facts and Procedural History
[2]   On January 15, 2013, Mother gave birth to J.B. 1 In September 2013, the

      Department of Child Services (“DCS”) opened an investigation after receiving a

      report that Mother was using marijuana in J.B.’s presence and that she failed to

      attend to his severe, bloody diaper rash. Rather than seeking medical attention

      for J.B., Mother left him with his paternal great uncle and aunt (collectively

      “Great Uncle”). That same day, DCS filed a petition alleging J.B. to be a child

      in need of services (“CHINS”). Mother, age seventeen at the time, had herself

      been designated a CHINS in a separate proceeding concerning her father. 2 At



      1
          J.B.’s father signed a voluntary consent to adoption and is not participating in these proceedings.
      2
          The CHINS proceedings concerning Mother were dismissed when Mother turned eighteen.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015               Page 2 of 17
      the initial hearing on the CHINS petition, the trial court removed J.B. and

      placed him in relative placement with Great Uncle. Mother admitted to the

      CHINS allegations, and the trial court designated J.B. a CHINS. The court

      ordered Mother to participate in the following: supervised visitation; substance

      abuse and psycho-parenting/family assessments and treatment; individual and

      family therapy; parenting classes; and random drug testing. She also was

      ordered to maintain safe, suitable, and stable housing, a legal source of income,

      and weekly contact with DCS. Mother failed to attend a meeting scheduled to

      discuss implementation of the reunification permanency plan, and the court

      found her noncompliant with supervised visitation, substance abuse treatment,

      and home-based therapy.


[3]   In October 2014, DCS filed a verified petition for involuntary termination of

      Mother’s parent-child relationship with J.B. Mother failed to appear for the

      November 2014 initial hearing. Notice of the February 2015 termination

      hearing was perfected by publication in the local newspaper in January 2015.

      Mother appeared at the hearing, having indicated that she had received the

      published notice. At the beginning of the hearing, she orally moved for a

      continuance on the grounds that she and counsel had not been in contact and

      therefore were unprepared to proceed. The trial court denied the motion, and

      counsel questioned witnesses on Mother’s behalf. The trial court requested

      proposed findings of fact from the parties and on March 3, 2015, issued findings

      of fact and conclusions thereon in an order terminating Mother’s relationship




      Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 3 of 17
      with J.B. Mother now appeals the trial court’s termination order. Additional

      facts will be provided as necessary.


                                   Discussion and Decision

      Section 1 – The trial court acted within its discretion in
           denying Mother’s last-minute oral motion for
                            continuance.
[4]   Mother challenges the trial court’s denial of her oral motion for continuance

      made on the morning of the termination hearing. The decision to grant or deny

      a motion for continuance is within the sound discretion of the trial court. J.P. v.

      G.M., 14 N.E.3d 786, 789 (Ind. Ct. App. 2014). We will reverse only for an

      abuse of that discretion. Rowlett v. Vanderburgh Cnty. Office of Family & Children,

      841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. An abuse of discretion

      occurs where the trial court reaches a conclusion that is clearly against the logic

      and effect of the facts or the reasonable and probable deductions that may be

      drawn therefrom. J.P., 14 N.E.3d at 790. Where the trial court denies a motion

      for continuance, an abuse of discretion will be found if the moving party has

      demonstrated good cause for granting the motion. Rowlett, 841 N.E.2d at 619;

      see also Ind. Trial Rule 53.5 (stating that trial court has discretion to grant

      continuance on motion and continuance “shall be allowed upon a showing of

      good cause established by affidavit or other evidence.”). No abuse of discretion

      will be found where the moving party has not shown that she was prejudiced by

      the denial of her continuance motion. J.P., 14 N.E.3d at 790.



      Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 4 of 17
[5]   Mother characterizes the denial of her motion for continuance as a denial of her

      due process rights. When the State seeks to terminate parental rights, it must

      do so in a fundamentally fair manner that meets due process requirements. In

      re C.G., 954 N.E.2d 910, 917 (Ind. 2011). Due process affords parents the

      opportunity to be heard at a meaningful time and in a meaningful manner. Id.

      The United States Supreme Court addressed the due process requirement in

      connection with requests for continuance in Ungar v. Sarafite, 376 U.S. 575, 589-

      90 (1964), reasoning,


              The matter of continuance is traditionally within the discretion of
              the trial judge, and it is not every denial of a request for more
              time that violates due process even if the party fails to offer
              evidence or is compelled to defend without counsel. Contrawise,
              a myopic insistence upon expeditiousness in the face of a
              justifiable request for delay can render the right to defend with
              counsel an empty formality. 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
              circumstances present in every case, particularly in the reasons
              presented to the trial judge at the time the request was denied.


[6]   Here, both Mother and counsel were present for the final hearing. She

      requested a continuance at the beginning of the hearing, asserting that she had

      not met with counsel until that morning and that counsel therefore had no time

      to prepare. In fact, she had not been in contact with counsel for eight months.

      She had already failed to appear for the initial termination hearing, and when

      the trial court asked her about her failure to appear or maintain contact with

      counsel, she simply stated that she had no telephone numbers or transportation.


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      She admitted that she had received notice by publication several weeks before

      the final hearing, yet she made no effort to contact counsel or DCS or even

      telephone the court to find out how to reach them. On the morning of the final

      hearing, DCS, witnesses, and court personnel were present and prepared to

      proceed. In contrast, Mother reappeared after a lengthy hiatus and was

      unprepared to proceed. Her failure to maintain contact with counsel for such a

      protracted period leading up to the final hearing shows that she had little

      interest in assisting in the preparation and presentation of her case. Simply put,

      she has failed to demonstrate any prejudice stemming from the trial court’s

      ruling. Based on the foregoing, we conclude that the trial court acted within its

      discretion in denying her last-minute request for continuance.


             Section 2 – The trial court did not clearly err in
           terminating the parent-child relationship between
                            Mother and J.B.
[7]   Mother challenges the sufficiency of evidence supporting the trial court’s

      judgment terminating her parental relationship with J.B. When reviewing a

      trial court’s findings of fact and conclusions thereon in a case involving the

      termination of parental rights, we first determine whether the evidence supports

      the findings and then whether the findings support the judgment. In re E.M., 4

      N.E.3d 636, 642 (Ind. 2014). We will set aside the trial court’s judgment only if

      it is clearly erroneous. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d

      143, 147 (Ind. 2005). We neither reweigh evidence nor judge witness

      credibility. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 6 of 17
      Rather, we consider only the evidence and inferences most favorable to the

      judgment. Id.


[8]   In Bester, our supreme court stated,


              The Fourteenth Amendment to the United States Constitution
              protects the traditional right of parents to establish a home and
              raise their children. A parent’s interest in the care, custody, and
              control of his or her children is perhaps the oldest of the
              fundamental liberty interests. Indeed the parent-child
              relationship is one of the most valued relationships in our culture.
              We recognize of course that parental interests are not absolute
              and must be subordinated to the child’s interests in determining
              the proper disposition of a petition to terminate parental rights.
              Thus, parental rights may be terminated when the parents are
              unable or unwilling to meet their parental responsibilities.


      839 N.E.2d at 147 (citations, quotation marks, and alteration omitted).


[9]   To obtain a termination of the parent-child relationship between Mother and

      J.B., DCS was required to establish in pertinent part:

              (A) that one (1) of the following is true:


                       (i) The child has been removed from the parent for at least
                       six (6) months under a dispositional decree.


              ….


               (B) that one (1) of the following is true:




      Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 7 of 17
                        (i) There is a reasonable probability that the conditions
                        that resulted in the child’s removal or the reasons for
                        placement outside the home of the parents will not be
                        remedied.


                        (ii) There is a reasonable probability that the continuation
                        of the parent-child relationship poses a threat to the well-
                        being of the child.


                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services;


               (C) that termination is in the best interests of the child; and


               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       Ind. Code § 31-35-2-4(b)(2).


[10]   In recognition of the seriousness with which we address parental termination

       cases, Indiana has adopted a clear and convincing evidence standard. Ind.

       Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,

       377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need

       not reveal that the continued custody of the parents is wholly inadequate for the

       child’s survival. Rather, it is sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.

       2013) (citation omitted).



       Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 8 of 17
[11]   Here, Mother generally asserts that DCS failed to prove each allegation in its

       petition for termination. However, she presents cogent argument only with

       respect to the following statutory elements: (1) that there is a reasonable

       probability that the conditions that led to J.B.’s removal will not be remedied;

       and (2) that there is a reasonable probability that continuation of the parent-

       child relationship poses a threat to J.B.’s well-being. 3 Because the statute

       plainly states that DCS need establish only one of the foregoing, we limit our

       discussion to the former.


[12]   When assessing whether there is a reasonable probability that conditions that

       led to a child’s removal will not be remedied, we must consider not only the

       initial basis for the child’s removal but also the bases for continued placement

       outside the home. A.I., 825 N.E.2d at 806. Moreover, “the trial court should

       judge a parent’s fitness to care for [her] children at the time of the termination

       hearing, taking into consideration evidence of changed conditions.” In re J.T.,

       742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. “Due to the permanent

       effect of termination, the trial court also must evaluate the parent’s habitual

       patterns of conduct to determine the probability of future neglect or deprivation

       of the child.” Id. For example, the court may properly consider evidence of a

       parent’s substance abuse, criminal history, lack of employment or adequate




       3
          Mother has waived any challenge to the remaining statutory elements for failure to present a cogent
       argument with citation to authority pursuant to Indiana Appellate Rule 46(A)(8). See A.D.S. v. Indiana Dep’t
       of Child Servs., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013) (noting that where parent fails to raise specific,
       cogent argument challenging trial court’s conclusions concerning certain elements of Ind. Code § 31-35-2-4,
       those challenges are waived on appeal), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015               Page 9 of 17
       housing, history of neglect, and failure to provide support. McBride v. Monroe

       Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). In

       making its case, “DCS need not rule out all possibilities of change; rather, [it]

       need establish only that there is a reasonable probability that the parent’s

       behavior will not change.” In re Kay.L., 867 N.E.2d 236, 242 (Ind. Ct. App.

       2007).


[13]   Here, the trial court issued extensive findings of fact. Mother has not

       specifically challenged any of those findings but instead makes general

       assertions referencing her reasons for failing to attend visitation, maintain

       contact with DCS, or complete the ordered services. As such, we are left to

       determine whether the unchallenged findings support the judgment. As they

       concern the reasonable probability of unremedied conditions, the unchallenged

       findings include the following: 4


                4. On or about September 16, 2013, the Child and Mother became
                involved with the DCS when the DCS investigated a report that Mother
                was using marijuana in front of the Child and had allowed a diaper rash
                to become so severe that the Child was bleeding;

                5. Instead of seeking medical attention for the Child herself, Mother left
                the Child with Great Uncle and was briefly unable to be reached after
                DCS became involved;

                ….

                7. At the time of the filing of [the CHINS] petition, Mother was



       4
         To the extent that the findings include proper names for Mother, J.B., and Great Uncle, we have removed
       those designations.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015       Page 10 of 17
        seventeen (17) years old.

        ….

        22. At the November 26, 2014 initial hearing, Mother failed to appear
        without contacting the Court, her counsel, or DCS;

        23. Service by Publication was perfected on Mother January 25, 2014;

        24. Between the first Dispositional Order entered on November 6, 2013
        and the Fact-Finding Hearing on February 17, 2015, Mother has failed to
        comply with the case plan in the following ways:


                 a. Once Mother turned eighteen (on May 30, 2014), she
                 completely stopped complying with Individual Counseling as
                 ordered;

                 b. Mother was closed out of visitation four separate times;

                         i. Since May 2, 2014, Mother has only visited the Child a
                         total of five times;

                         ii. Three of those visits were not on her own visitation
                         referral, as Mother would come visit the Child during times
                         scheduled for the Child to visit with his Maternal
                         Grandfather, and

                         iii. The last time Mother visited Child was December 9,
                         2014, which was only her fifth visit in a period of seven
                         months;

                 c. Mother was closed out of home based services for non-
                 compliance and is currently not participating;

                 d. Mother did complete the substance abuse assessment, but she
                 did not follow up with the recommendations for treatment that the
                 assessment provided for;


Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 11 of 17
                 e. When she could be found, Mother did submit to random drug
                 screens, but each drug screen administered by DCS throughout the
                 underlying CHINS matter returned positive for illegal substances;

                 f. Mother did not complete parenting classes as ordered;

                 g. Mother did complete the psycho-parenting evaluation but did
                 not comply with the recommendations stemming from that
                 evaluation;

                 h. Mother never provided the Court or DCS proof of a legal
                 income as ordered;

                 i. Mother did not keep in regular contact with DCS or notify DCS
                 of a change in address or household composition;

                         i. Once Mother turned eighteen on May 30, 2014, she left
                         her Father’s home and did not inform DCS of each new
                         address she lived in,

                         ii. Testimony at the fact-finding hearing indicated at some
                         point Mother began living with a boyfriend and his mother,
                         and DCS was not informed of this address, and

                         iii. FCM [Family Case Manager] Bridget Bramlett, who
                         was assigned the case after FCM Allbee was promoted, only
                         spoke with Mother one time, on September 3, 2014;

                                  1. Mother told FCM Bramlett that she “did not have
                                  time for this” and never spoke with DCS between
                                  that point and the Fact-Finding Hearing on February
                                  17, 2015;

        25. No documentation was given to DCS, the Court, or Mother’s
        counsel to show she had sought these ordered services out on her own;



Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 12 of 17
        26. Michelle Allen, Mother’s therapist, testified that she treated Mother
        for Anger and Aggression Issues between September 2013 and May of
        2014;

                 a. These anger and aggression issues affect Mother’s interaction
                 with nearly everyone in her life, including her relationship with the
                 Child;

                 b. Michelle Allen testified that only towards the end of this period
                 did Mother begin to commit to the therapy, which was necessary
                 for true improvement,

                 c. However, once Mother turned eighteen, she stopped visiting
                 Michelle Allen and was closed out of the therapy services;

                 d. Michelle Allen believes that without these issues being
                 addressed, it would be harmful for Child to be cared for by his
                 Mother,

                 e. This was confirmed by Michelle Allen when she read a visit
                 report detailing a visit between Mother and Child that stated
                 Mother covered her ears and stated she could not handle Child
                 crying;

        27. When asked, Mother could not articulate how she planned to
        provide Child with a stable life and home environment;

                 a. Mother testified that she does not have a job, is currently
                 pregnant, and living with a boyfriend who has a criminal record;

        28. Mother’s compliance with the case plan and dispositional orders can
        be summed up as such:

                 a. Before Mother turned eighteen on May 30, 2014, she was
                 intermittently visiting the child, intermittently participating in
                 court ordered services, and consistently using illegal substances;


Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 13 of 17
                        b. After Mother turned eighteen on May 30, 2014, she
                        disappeared for long stretches of time, visited with the Child only
                        five times, did not make any contact with service providers other
                        than visitation workers, and only spoke with DCS one time;

                                i. In fact, DCS had to publish Mother’s summons to the
                                fact finding hearing.

                                ii. Mother testified she saw the summons in the local
                                newspaper about 1 month before the February 17 2015 Fact
                                Finding date, and

                                iii. At no point after becoming aware of the hearing did
                                Mother contact DCS, her attorney, or the Court;

               29. The Child has been in relative placement with a paternal aunt and
               uncle since September 13, 2013 [age eight months];

               30. The Child’s relative placement has since provided support, care,
               guidance, and supervision in the absence of the same from the Mother
               for approximately seventeen (17) months;

               ….

               38. Each of the above paragraphs is expressly adopted as the Court’s
               own finding of fact. Each paragraph, independently and cumulatively,
               demonstrates this Court’s finding that there is a reasonable probability
               that the conditions that resulted in the Child’s removal from the home of
               the biological Mother will not be remedied, or that continuation of the
               parent-child relationship poses a threat to the well-being of the Child[.]

       Appellant’s App. at 73-83.


[14]   Here, Mother’s participation in services was intermittent at best. Even when

       she completed certain services such as the parenting assessment and psycho-


       Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 14 of 17
       parenting and substance abuse evaluations, she did not comply with the

       recommendations for treatment and follow-up services. She was closed out of

       home-based therapy for noncompliance. Her therapist indicated that she had

       anger and aggression issues that affect her relationships with everyone in her

       life and that, left untreated, could prove harmful to J.B. Once Mother turned

       eighteen and left her father’s home, she basically went incommunicado and

       failed to maintain contact with DCS or participate in services. Sadly, the only

       pattern with which she maintained consistency was her drug use, having tested

       positive for illegal substances each time she could be located and screened. She

       failed to complete parenting classes and was closed out of visitation four times.

       She had visited J.B. only five times in the nine months preceding the final

       hearing and had ceased all visitation as of two months preceding that hearing.

       She also failed to provide proof of legal income and stable housing. As a

       whole, the unchallenged findings show Mother’s pattern of failing to earnestly

       commit to spending time with J.B. See Lang v. Starke Cnty. Office of Family &

       Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (failure to exercise right to

       visit one’s children demonstrates lack of commitment to complete actions

       necessary to preserve parent-child relationship), trans. denied.


[15]   J.B. was removed from Mother based on Mother’s drug use and ensuing neglect

       of his health and medical needs. Although Mother initially took some positive

       steps by submitting to the required evaluations and assessments, she did not

       maintain her progress due to her inability to refrain from unhealthy conduct in

       her own life. In other words, she could not build a consistent, positive


       Court of Appeals of Indiana | Memorandum Decision 48A02-1503-JT-200 | October 16, 2015   Page 15 of 17
       relationship with J.B. because she could not establish consistent, positive

       patterns in her own life. Instead, she continued to use illegal drugs and, at the

       time of the final hearing, was pregnant again and living with a boyfriend who

       uses marijuana and has a criminal record. This simply does not bode well for

       her prospects of remedying the conditions that led to J.B.’s removal. “[A] trial

       court need not wait until a child is irreversibly influenced by a deficient lifestyle

       such that his or her physical, mental, and social growth is permanently

       impaired before terminating the parent-child relationship.” Castro, 842 N.E.2d

       at 372.


[16]   Finally, Mother claims that the trial court’s concluding remarks are inconsistent

       with its ultimate decision to terminate her parental rights:

               THE COURT: … I understand and I sympathize and I’m sorry
               you’ve had a very tough childhood and you’re still very young
               and hopefully, you know, things are going to turn around for you. It
               looks like maybe you’ve got a chance here if you take advantage of it.
               But having said that, I also need to look at what’s best for this
               child that is born now. And even looking at that, maybe what’s
               best for your unborn child at this point. So I am going to take all
               of that into consideration when I make my decision.


       Tr. at 49-50 (emphasis added). Read in context, we believe the trial court’s

       second chance reference pertained to Mother’s unborn child and, as such, do

       not find it inconsistent with the trial court’s ultimate decision to terminate her

       parent-child relationship with J.B. Even so, we note that our standard of review

       requires that we determine whether the unchallenged findings of fact support the

       trial court’s conclusions thereon. As discussed, we conclude that they do. Like

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       the trial court, we are sensitive to Mother’s young age and tumultuous

       upbringing, having been designated a CHINS herself. Yet, we are also mindful

       that she made the majority of her progress toward reunification with J.B. before

       she turned eighteen and left her father’s home. Based on the foregoing, we

       conclude that the trial court did not clearly err in determining that there is a

       reasonable probability that the conditions that led to J.B.’s removal will not be

       remedied. Accordingly, we affirm its termination order.


[17]   Affirmed.


       May, J., and Bradford, J., concur.




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