MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Feb 16 2017, 6:25 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Robert J. Henke
                                                          Marjorie Newell
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 16, 2017
of the Parent-Child Relationship                          Court of Appeals Case No.
of A.E.S.H., P.M.H. &                                     40A01-1608-JT-1998
J.G.A.H., Minor Children,                                 Appeal from the Jennings Circuit
K.M.H., Mother,                                           Court
                                                          The Honorable Jon W. Webster,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          40C01-1602-JT-10
                                                          40C01-1602-JT-11
The Indiana Department of
                                                          40C01-1602-JT-12
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017     Page 1 of 10
      Brown, Judge.


[1]   K.M.H. (“Mother”) appeals the involuntary termination of her parental rights

      with respect to her children A.E.S.H., P.M.H., and J.G.A.H. (the “Children”).

      Mother raises one issue which we revise and restate as whether the trial court

      abused its discretion in denying Mother’s motion to continue the termination

      fact-finding hearing. We affirm.


                                      Facts and Procedural History

[2]   Mother and C.H. (“Father”) had J.G.A.H., born February 20, 2003, P.M.H.,

      born February 15, 2005, and A.E.S.H., born November 21, 2006. On June 13,

      2014, the Indiana Department of Child Services (“DCS”) filed verified petitions

      alleging that the Children were children in need of services (“CHINS”). DCS

      alleged that Mother had failed to ensure consistent attendance, proper behavior,

      and/or adequate academic achievement of the Children at school, failed to

      provide a safe and sanitary home with functioning utilities and appliances,

      failed to ensure proper hygiene for the Children, had verbally agreed to an

      informal adjustment but then not followed through, and that DCS had an

      extensive history with this family for substantially the same issues. The

      Children were removed because the home conditions were very poor with no

      furniture, water, stove, or refrigerator.


[3]   On October 8, 2014, the court adjudicated the Children to be CHINS, and on

      November 20, 2014, it held a dispositional hearing at which Mother appeared.




      Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017   Page 2 of 10
      The court ordered Mother to participate in all services and programs as

      recommended by DCS and service providers.


[4]   On June 26, 2015, the court entered an Order Approving Permanency Plan

      finding that Mother had not completed her mental health assessment, not

      followed through with the recommendation of individual therapy stemming

      from the assessment, not consistently utilized her parent aide services, refused

      to submit to any drug screens, attended only half of her scheduled supervised

      visitations during the current reporting period, and had not visited the Children

      since visits were moved from the family home on March 16, 2015.


[5]   On February 10, 2016, DCS filed petitions for the involuntary termination of

      Mother’s parental rights. On February 12, 2016, the court entered an order

      which scheduled an initial hearing for February 22, 2016, and a trial for April 5,

      2016, and which stated: “The parents must appear for trial, or they may lose

      forever, their right to contest termination of their parental rights.” Appellant’s

      Appendix at 24.


[6]   In an Entry on Initial Hearing dated February 29, 2016, the court indicated that

      it held a hearing on February 22, 2016, at which Mother was present. The

      court’s order found that it informed Mother of her rights including the right to a

      fact-finding hearing, to subpoena witnesses, and to cross-examine witnesses,

      and that Mother understood her rights and had no questions regarding her

      rights.




      Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017   Page 3 of 10
[7]   On March 29, 2016, Mother’s counsel filed a motion for continuance of the

      April 5, 2016 trial. 1 That same day, the court granted a continuance and

      scheduled a hearing for July 7, 2016.


[8]   On July 7, 2016, the court held a hearing at which it stated that a fact finding

      hearing was scheduled, that Mother was not present, that her attorney was

      present, and that Mother had called the court that morning and spoke to one of

      the court’s staff. Mother’s counsel stated that she received a phone call from

      Mother indicating that Mother’s ride did not come to pick her up, and Mother’s

      counsel moved for a continuance. DCS’s counsel objected to the continuance

      on the basis that Mother knew of the hearing and did not reach out to DCS or

      the court appointed special advocate for transportation. The court denied the

      motion for a continuance and stated:

                 The Court notes that this is a Fact Finding hearing, has been set
                 sent [sic] March 29th. – More than ample time for [Mother] to
                 make reliable, dependable – plans to have, to be here or to get
                 transportation for this hearing. – These cases are put on a fast
                 track for a reason and that is because we need finality for all
                 involved.


      Transcript at 4.


[9]   Zenda Rogers, a wraparound facilitator responsible for case management and

      facilitating child and family team meetings, testified that she stressed it several




      1
          The record does not contain a copy of this motion.


      Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017   Page 4 of 10
       times that Mother had the opportunity to call her to have someone transport

       them and that Mother had been provided transportation several times to

       meetings. Rebecca Cunningham, a therapist at Centerstone, testified that she

       completed an intake evaluation of Mother in January 2016 and recommended

       individual therapy, family therapy, and case management services.

       Cunningham scheduled an appointment a week after the evaluation, but

       Mother failed to show for that appointment as well as a subsequent

       appointment. Cunningham did not hear back from Mother.


[10]   Pam Ball, a family support specialist, testified that Mother was inconsistent

       with showing up for appointments and visitations. Ball also testified that she

       offered Mother transportation. Specifically, Ball stated that Mother and Father

       would just call and say that they could not make it because they did not have

       transportation, that she would offer transportation, and then Mother and Father

       would say that they were not at home. She testified that the first visit in the

       parents’ home occurred in February 2015, the home was unsanitary, there were

       dangerous items such as tools laying around the home, and there were animals

       in the home “that appeared to be less than friendly.” Id. at 58. The home was

       cleaned up to pass DCS inspection, but it deteriorated quickly resulting in no

       running water and an enormous amount of pests, cockroaches, and rodents.

       She indicated that visits were moved from the home and Mother came to a visit

       at Centerstone in March 2015 and said that she “would not bring her a-- back

       into Centerstone.” Id. at 60. Ball also testified that Mother had not made




       Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017   Page 5 of 10
       contact with her or attended any visitation through Centerstone since March

       23, 2015.


[11]   Debra Satterfield, a DCS supervisor, testified that there had been thirty reports,

       eleven substantiated assessments, and three previous cases over the years. She

       testified that she had problems contacting Mother and that she would not

       answer her door. She stated that she offered Mother transportation and had

       transported her to court several times, to an assessment, and occasionally to

       visits. She testified that the home was cleaned near the end of January 2015 but

       at the time the home visits ended in March 2015 it was roach infested, dirty,

       trash was piled up outside and inside the home, and they had no water again.


[12]   Julia Barnette, a family case manager, testified that she had been the family

       case manager since September 2015 and that she did not hold a transition

       meeting with the parents because she was unable to make contact with them.

       Barnette testified that she went to the home twice, but no one answered the

       door, that she made a referral for a gas voucher to help with transportation, and

       that Mother did not comply with recommendations while she was the case

       manager. She also testified that Mother missed appointments and did not

       contact her prior to those appointments to indicate that she needed help with

       transportation.


[13]   On August 1, 2016, the court entered an order terminating Mother’s parental

       rights. The order contains detailed findings of fact and concludes that there is a

       reasonable probability that the conditions which resulted in the Children’s


       Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017   Page 6 of 10
       removal and continued placement outside the home will not be remedied, that

       the continuation of the parent-child relationship poses a threat to the Children’s

       well-being, that termination of Mother’s parental rights is in the Children’s best

       interests, and that adoption is a satisfactory plan for the Children.


                                                       Discussion

[14]   The issue is whether the trial court abused its discretion by denying Mother’s

       motion to continue the termination hearing. Mother argues that the court

       abused its discretion in denying her motion to continue because she was denied

       the opportunity to stand and confront the witnesses against her and provide her

       own reasons and renditions of the facts. She asserts that she was unable to

       provide her counsel with advice and information in preparing for questions.

       She also asserts that she was not afforded the opportunity to attend and

       participate. In support of her argument, Mother relies on Rowlett v. Vanderburgh

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

       denied. 2


[15]   DCS argues that Mother had over two months to arrange transportation to the

       hearing, DCS and others offered to provide Mother transportation when she

       needed it, Mother did not show good cause for a continuance, and Mother has

       not shown any specific harm caused by her failure to appear and has not



       2
        Mother does not challenge the trial court’s conclusions that there is a reasonable probability that the
       conditions which resulted in the Children’s removal and continued placement outside the home will not be
       remedied, that the continuation of the parent-child relationship poses a threat to the Children’s well-being,
       that termination of Mother’s parental rights is in the Children’s best interests, or that adoption is a
       satisfactory plan for the Children.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017           Page 7 of 10
       disclosed any testimony she would have offered to overcome the substantial

       evidence supporting the termination of her parental rights.


[16]   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) (citing Rowlett,

       841 N.E.2d at 619). Ind. Trial Rule 53.5 provides that a court may grant a

       continuance upon a showing of “good cause.” Discretion is a privilege afforded

       a trial court to act in accord with what is fair and equitable in each

       circumstance. J.M. v. Marion Cty. Office of Family & Children, 802 N.E.2d 40, 43

       (Ind. Ct. App. 2004), trans. denied. A decision on a motion for continuance will

       be reversed only upon a showing of an abuse of discretion and prejudice

       resulting from such an abuse. Id. “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. The Indiana Supreme Court has explained that an abuse of

       discretion analysis consists of an “evaluation of facts in relation to legal

       formulae. In the final analysis, the reviewing court is concerned with the

       reasonableness of the action in light of the record.” Id. at 44 (citing Tapia v.

       State, 753 N.E.2d 581, 585 (Ind. 2001)). Thus, a trial court’s ruling should be

       set aside only if it is clearly against the logic and effect of the facts and

       circumstances before the court, and we will not substitute our judgment for that

       of the trial court. Id.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017   Page 8 of 10
[17]   In Rowlett, the father, who was incarcerated, had expressed a desire for

       reunification starting on the very day his children were removed and was active

       in the CHINS case. 841 N.E.2d at 618-619. The father requested a

       continuance of the termination hearing until after his release, which was denied

       by the trial court. Id. at 618. This Court concluded that the trial court abused

       its discretion in denying the request for a continuance and noted that father had

       been incarcerated for all but two months of the action and had not been given a

       full opportunity “to participate in services offered by the OFC directed at

       reunifying him with his children upon his release from prison.” Id. at 619.


[18]   Unlike the incarcerated father in Rowlett, who lacked an opportunity to

       participate in services and took substantial advantage of the resources available

       to him while he was incarcerated, Mother was not incarcerated and has been

       offered services over the course of the two-year period of the underlying CHINS

       case to improve her fitness to parent the Children. Mother was represented by

       counsel at the hearing, she does not specifically indicate what evidence she

       would have produced had she been present, and she does not challenge any of

       the trial court’s findings or conclusions. The wraparound facilitator, the family

       support specialist, the DCS supervisor, and the family case manager all testified

       regarding their offer to assist or assistance with transportation including the

       DCS supervisor’s testimony that she had transported Mother to court several

       times. We also note that Mother was previously granted a continuance and the

       hearing was rescheduled from April 5, 2016, to July 7, 2016. Under the

       circumstances, we cannot say that Mother has shown good cause for another


       Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017   Page 9 of 10
       continuance or demonstrated that she was prejudiced. We cannot say that the

       court abused its discretion in denying Mother’s motion for a continuance.


                                                    Conclusion

[19]   For the foregoing reasons, we affirm the termination of Mother’s parental

       rights.


[20]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1608-JT-1998 | February 16, 2017   Page 10 of 10
