MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jun 07 2019, 9:07 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Brooklyn, Indiana                                         Attorney General of Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 7, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.B. (Minor Child),                                    18A-JT-2698
and                                                       Appeal from the Fayette Circuit
                                                          Court
L.V. (Mother),                                            The Honorable Hubert Branstetter
Appellant-Respondent,                                     Judge
                                                          Trial Court Cause No.
        v.                                                21C01-1711-JT-440

The Indiana Department of
Child Services,
Appellee-Petitioner.



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019                    Page 1 of 12
                                                 Case Summary
[1]   L.V. (“Mother”) appeals following the termination of her parental rights to J.B.

      (“the Child”). We affirm.


                                                          Issue
[2]   Mother’s sole issue on appeal is whether the trial court abused its discretion in

      denying Mother’s motion to continue the termination fact-finding hearing.


                                                          Facts
[3]   Mother and C.B. (“Father”) are the biological parents of the Child, who was

      born in September 2009. The Fayette County Department of Child Services

      (“DCS”) received an allegation that: (1) Mother and Father administered

      inappropriate discipline to the Child; (2) Mother and Father used

      methamphetamine while the Child was in their care; and (3) Father faced

      criminal charges of battery to person under fourteen years of age. DCS

      removed the Child from Mother’s and Father’s care on an emergency basis on

      June 30, 2016. 1


[4]   On July 5, 2016, DCS filed a petition alleging that the Child was a child in need

      of services (“CHINS”). On November 22, 2016, after a hearing, the trial court

      adjudicated the Child as a CHINS. The trial court granted wardship of the

      Child to DCS pursuant to a dispositional order on December 5, 2016. Pursuant




      1
          The Child has not returned to Mother’s or Father’s care since her removal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019     Page 2 of 12
      to the dispositional order, Mother was ordered to: (1) refrain from drug use; (2)

      submit to random drug screens; (3) obey the law; (4) maintain contact with

      DCS; (5) submit to unannounced home visits; (6) maintain suitable housing; (7)

      secure steady employment; (8) complete a parenting assessment and substance

      abuse assessment; (9) participate in home-based counseling; (10) attend

      supervised visitation; and (11) provide a safe and secure environment for the

      Child.


[5]   During the pendency of the CHINS matter, Mother was largely non-compliant

      with DCS’s case plan. Mother’s substance abuse continued largely unabated.

      She refused drug screens and tested positive numerous times for “unprescribed

      amphetamines and methamphetamines.” Tr. p. 41. Mother was arrested “a

      few times” and was “in and out of jail for her continued substance abuse”

      during the CHINS pendency. Id. at 41-42. Service providers discharged

      Mother from services for her lack of engagement. Mother failed to maintain

      contact with DCS, did not attend supervised visits with the Child, and failed to

      appear for scheduled review and permanency hearings.


[6]   On November 14, 2017, DCS filed a petition to terminate Mother’s parental

      rights. The termination fact-finding hearing was initially scheduled for

      February 12, 2018. Mother moved for a continuance, which was granted. The

      termination fact-finding hearing was rescheduled and, again, Mother moved for

      a continuance on April 17, 2018, which was granted. On June 26, 2018,

      Mother sought a third continuance, which was granted on July 10, 2018.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 3 of 12
      Mother filed a fourth motion to continue on July 11, 2018, which was granted

      on August 10, 2018.


[7]   The trial court ultimately re-set Mother’s fact-finding hearing for October 2,

      2018. Mother did not appear, but she was represented by counsel. At the

      outset of the hearing, DCS advised the trial court that:


              [DCS] [ ] did file and mail out a notice of the hearing to
              terminate the parent-child relationship and that was mailed out
              on [ ] September 20, 2018 and it was file stamped September 19th
              of 2018 [ ] and that was mailed to [M]other’s [ ] last known
              mailing address which is [redacted] and that’s in accordance with
              the Certificate of Service that was also filed with that [ ] notice of
              hearing . . . .


      Tr. p. 13. Counsel for DCS also advised the trial court that “[Mother] was in

      some contact with the family case manager [ ] at the end of last week[,]” and

      the family case manager was prepared to testify that Mother was aware of the

      fact-finding hearing. Id.


[8]   Counsel for Mother advised the trial court that, on August 13, 2018, he sent a

      letter to Mother notifying her of the hearing date. Citing Mother’s absence,

      counsel for Mother then moved for a fifth continuance. DCS objected, and the

      trial court denied the motion for continuance. Counsel for Mother did not

      allege lack of statutory notice of the termination fact-finding hearing.


[9]   DCS called witnesses and presented evidence in Mother’s absence. Father,

      who was incarcerated at the time of the fact-finding hearing, was present and

      testified. Family case manager Molly Parkhurst testified that she had spoken
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 4 of 12
       with Mother the day before the fact-finding hearing: “[Mother] just told

       [Parkhurst] that [Mother] wanted to go to rehab, that [Mother] needed to go to

       rehab [ ], and that [Mother] had a[n] [active] warrant” for violation of

       probation. Id. at 38. Parkhurst testified further that Mother’s absence was not

       due to incarceration.


[10]   Defense counsel lodged an objection to the termination fact-finding hearing

       proceeding in Mother’s absence and stated, “I’m in a difficult position. I have a

       client who’s not here today. It’s very [] important part of her life and it’s a very

       significant hearing in having it without her is uncomfortable.” Id. at 44. On

       October 16, 2018, the trial court entered an order, containing findings of fact

       and conclusions of law, wherein the court terminated Mother’s parental rights

       to J.B. Mother now appeals.


                                                    Analysis
[11]   Mother argues that the trial court erred in denying her motion to continue the

       termination fact-finding hearing. The Fourteenth Amendment to the United

       States Constitution protects the traditional rights of parents to establish a home

       and raise their children. In re K.T.K. v. Indiana Dept. of Child Services, Dearborn

       County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A] parent’s interest in the

       upbringing of [his or her] child is ‘perhaps the oldest of the fundamental liberty

       interests recognized by th[e] [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530

       U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of course, that parental

       interests are not absolute and must be subordinated to the child’s best interests


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 5 of 12
       when determining the proper disposition of a petition to terminate parental

       rights. Id. Thus, “‘[p]arental rights may be terminated when the parents are

       unable or unwilling to meet their parental responsibilities by failing to provide

       for the child’s immediate and long-term needs.’” In re K.T.K., 989 N.E.2d at

       1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

       denied).


[12]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.

       2011). We consider only the evidence and reasonable inferences that are most

       favorable to the judgment. Id. We must also give “due regard” to the trial

       court’s unique opportunity to judge the credibility of the witnesses. Id.

       (quoting Ind. Trial Rule 52(A)).


[13]   “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,

       244 (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; however, no abuse of discretion will be found when the moving

       party has not demonstrated that he or she was prejudiced by the denial. Rowlett

       v. Vanderburgh Cty. Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct.

       App. 2006) (internal citations omitted), trans. denied.


[14]   Mother argues that, by allowing the termination fact-finding hearing to proceed

       in her absence, the trial court allowed a “fundamentally unfair” and


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 6 of 12
       “prejudicial” proceeding, at which “no one testified that [Mother] knew about

       the hearing”; no one attempted to reach Mother by telephone; Mother’s counsel

       “presented no evidence on Mother’s behalf[;] and Mother’s counsel made a

       brief closing argument primarily about Father.” Appellant’s Br. p. 10. We

       cannot agree.


[15]   Parents do not have a constitutional right to be present at a termination hearing.

       K.W., 12 N.E.3d at 249. Indiana Code Section 31-35-2-6.5 does require that

       DCS “shall” send notice to a parent at least ten days before the termination of

       parental rights fact-finding hearing. We have previously stated: “[f]ailure to

       comply with statutory notice is [ ] a defense that must be asserted[;] [o]nce

       placed in issue, [DCS] bears the burden of proving compliance with the

       statute.” In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012).


[16]   In seeking the continuance, counsel for Mother did not argue that DCS failed to

       make proper statutory notice. After DCS introduced evidence of its compliance

       with the statutory notice requirement, coupled with FCM Parkhurst’s testimony

       that she believed that Mother had notice of the hearing, counsel for Mother

       advised the trial court that he, too, mailed notice of the hearing to Mother in

       advance of the termination fact-finding hearing. Moreover, although Mother

       expresses her dissatisfaction with counsel’s efforts on her behalf, the fact

       remains that Mother’s counsel appeared and cross-examined DCS’s witnesses

       on her behalf at the termination fact-finding hearing. See In re E.E., 853 N.E.2d

       1037, 1044 (Ind. Ct. App. 2006) (determining that the trial court did not deprive



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 7 of 12
       a parent of due process by proceeding with a termination hearing in the parent’s

       absence where the parent’s counsel participated in the hearing), trans. denied.


[17]   Mother relies heavily upon our Supreme Court’s discussion of the absence of a

       parent from termination proceedings in K.W. In K.W., the mother was

       incarcerated and sought continuance of her termination fact-finding

       proceedings until her release in approximately two weeks. The trial court

       denied the mother’s motion for a continuance and conducted the termination

       fact-finding hearing in the mother’s absence, which resulted in the termination

       of the mother’s parental rights.


[18]   On appeal, we affirmed, citing overwhelming evidence supporting the

       termination of the mother’s parental rights. We also acknowledged that,

       although the mother’s counsel could have done more to secure her participation

       through alternative means, “‘counsel’s performance was not so defective as to

       warrant a different outcome’ in light of the evidence presented at the

       termination hearing.” K.W., 12 N.E.3d at 243. Our Supreme Court granted

       transfer and subsequently vacated the portion of the trial court’s order that

       terminated the mother’s parental rights, finding that the proceedings were

       fundamentally unfair, prejudicial, and failed to comport with standards of due

       process.


[19]   In analyzing the mother’s claim in K.W., our Supreme Court employed the

       eleven-factor test it adopted in In Re C.G., Z.G. v. Marion Cnty. Dep’t of Child

       Servs., 954 N.E.2d 910, 922 (Ind. 2011), albeit in the context of reviewing a


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 8 of 12
       motion to transport an incarcerated parent to a termination fact-finding hearing.

       The K.W. Court acknowledged the factual distinctions between K.W. and C.G.,

       but found that the C.G. test “illuminate[d] [ ] review of whether [the mother]

       showed good cause why her motion [for continuance] should be granted or if

       the denial was otherwise ‘clearly against the logic and effect of the facts and

       circumstances before the court or the reasonable, probable and actual

       deductions to be drawn therefrom.’” Id.


[20]   The C.G. factors are as follows:


               (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 [e]ffect 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. We address the relevant factors in turn.


[21]   Factor (1)—delay resulting from parental attendance—is difficult to quantify

       because Mother failed to appear of her own volition, and not due to an
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 9 of 12
       incarceration of finite duration, as in K.W. Regarding factor (2), the need for an

       early determination of the matter, although there was no specific urgency, the

       Child was nine years old and in need of permanency, after a two-and-one-half-

       year CHINS pendency.


[22]   As to factor (3), the elapsed time during which the proceeding was pending, the

       CHINS matter remained pending from June 2016 through October 2018; and

       specifically, the fact-finding hearing—initially scheduled for February 2018—

       did not occur until October 2018, due to Mother’s four continuances.

       Regarding factor (4), the effect of Mother’s presence on the best interest of the

       Child, we find that the Child’s need for permanency weighs against Mother’s

       need for a fifth continuance.


[23]   As to factor (5), the reasonable availability of Mother’s testimony through

       alternate means, we find that her counsel should have attempted to secure her

       telephonic participation. This factor weighs in Mother’s favor. Regarding

       factor (6), the interests of the incarcerated parent in presenting his or her

       testimony in person, rather than by alternate means, Mother undeniably had a

       significant interest in presenting testimony in person, rather than via alternative

       means; however, as noted above, Mother’s absence was of her own volition.


[24]   Regarding the seventh factor—the effect of Mother’s absence and participation

       on her likelihood to succeed on the merits—the record is clear that Mother was

       largely unsuccessful in complying with DCS’s case plan and was discharged by

       various service providers for her lack of engagement. Although Mother would


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 10 of 12
       have faced a daunting challenge in making her case, her presence—to provide

       explanations and context—would have surpassed what defense counsel could

       accomplish in her absence.


[25]   Factors (8) and (9) are inapplicable here; we proceed to the tenth factor – the

       inconvenience or detriment to the parties or witnesses. Here, Mother moved

       for, and the trial court granted, four continuances of the termination fact-

       finding. Mother, thereby, delayed the trial court’s permanency determination

       as to the Child and the Child’s relative/pre-adoptive caregiver. Mother also

       repeatedly inconvenienced the witnesses, including caseworkers and service

       providers, as well as the attorneys involved.


[26]   After weighing the instructive C.G. factors, we conclude that the trial court’s

       denial of Mother’s motion for a continuance was not clearly against the logic

       and effect of the circumstances before the court. The instant case is factually

       distinguishable from K.W. K.W. involved a parent whose incarceration

       thwarted her ability to participate in the termination fact-finding hearing

       involving her child. The K.W. Court deemed it fundamentally unfair and

       prejudicial for a termination fact-finding hearing to be conducted in the

       mother’s involuntary absence. Here, Mother received notice but apparently

       elected against attending the fact-finding hearing because she had an active

       warrant. Unlike the K.W. matter, which “had not been overly drawn-out or

       delayed,” the termination fact-finding hearing in the instant case was

       considerably delayed. Id. at 248.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 11 of 12
[27]   After weighing the instructive C.G. factors, we conclude that the trial court’s

       denial of Mother’s motion for a continuance was not clearly against the logic

       and effect of the circumstances before the court. We decline to find that the

       trial court’s denial of Mother’s fifth motion for a continuance rendered the

       proceedings fundamentally unfair, prejudicial, or contrary to standards of due

       process.


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

       continue the termination fact-finding hearing. We affirm.


[29]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2698 | June 7, 2019   Page 12 of 12
