MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                  Jul 24 2015, 10:39 am
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                                    ATTORNEY FOR APPELLEE
Julianne L. Fox                                           Robert R. Faulkner
Evansville, Indiana                                       Evansville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of:                        July 24, 2015
A.E.G.                                                   Court of Appeals Case No.
                                                         82A01-1411-AD-475
                                                         Appeal from the Vanderburgh
A.G.,                                                    County Superior Court
Appellant-Defendant,                                     The Honorable Renee A. Ferguson,
                                                         Magistrate
        v.
                                                         Cause No. 82D07-1405-AD-46
E.R.J.,
and K.M.J.
Appellees-Plaintiffs




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015       Page 1 of 7
                                             Case Summary
[1]   A.G. (“Father”) appeals the trial court’s order denying his motion to continue,

      presenting the issue of whether the trial court abused its discretion and denied

      him due process by proceeding with a hearing in which it found his consent to

      the adoption of A.E.G. (“Child”) unnecessary. 1 We affirm.



                              Facts and Procedural History
[2]   On June 9, 2012, Father stabbed and killed his pregnant wife, K.G. (“Mother”),

      while then three-year-old Child was present. In 2013, Father was convicted of

      murder and, on December 23, 2013, was sentenced to sixty-five years

      imprisonment, enhanced by thirty years for being a habitual offender and

      twenty years for causing the termination of a human pregnancy. 2


[3]   Since Mother’s death, Child has been living with her maternal grandparents,

      E.R.J. and K.M.J. (“Grandparents”). On May 7, 2014, Grandparents filed a

      petition to adopt Child. Also on May 7, 2014, a notice of adoption was mailed

      to Father at the Indiana Department of Correction (“DOC”). The notice was




      1
        Because we find this issue dispositive, we do not address Father’s alternate argument regarding the
      timeliness of his motion to contest.
      2
        Father’s conviction and aggregate 115 year sentence were affirmed by this Court in an unpublished opinion
      issued in December 2014. Father’s petition to transfer to the Indiana Supreme Court was denied on March
      19, 2015. His earliest projected release date is in 2070.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015                Page 2 of 7
      received on May 9, 2014. Father then filed a motion to contest the adoption on

      June 11, 2014. He was appointed indigent counsel on June 13, 2014.


[4]   By agreement of counsel, a hearing was scheduled for October 16, 2014. On

      the day of the hearing, Father by counsel filed a motion to continue because

      counsel had been unable to contact Father via phone. 3 Father requested that

      the trial court set two new hearing dates: one so that counsel could contact

      Father via a court phone and the second to hear evidence on whether Father’s

      consent was necessary.


[5]   Grandparents objected, arguing that they were ready to proceed. After a

      sidebar conference, 4 the court held a hearing on the necessity of Father’s

      consent. Grandparents presented evidence related to Father’s conviction and

      sentence in the murder case, including certified copies of the docket, abstract of

      judgment, and probable cause affidavits. The trial court also took judicial

      notice of its own case.


[6]   The trial court found that Father was convicted of and currently incarcerated

      for the murder of Mother and Father’s consent to the adoption could be




      3
        Father’s counsel explained that she could not reach Father because of restrictions imposed by prison
      management. The trial court confirmed that multiple DOC facilities were not permitting attorneys to call
      their incarcerated clients, instead insisting that the trial court call. The court explained that “obviously the
      Court has to remain neutral and unbiased and it would be inappropriate for the Court to contact the inmate.
      So . . . we’re trying to do a work around where basically the Public Defender has the consent of the Court to
      call from a Court phone, represent themselves as the Court to the institution for the purpose of getting their . .
      . client on the phone so they can speak to them.” (Tr. 7-8.)
      4
          The entire conference was inaudible to the court reporter.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015                   Page 3 of 7
       dispensed with under Indiana Code section 31-19-9-9. 5 The court also found

       Father was not entitled to notice under Section 31-19-2.5-4. The court denied

       Father’s motion to continue.


[7]    The court then heard evidence that Child was “terrified” of Father and, if

       Father’s name comes up, “she goes into a bit of recession or hiding.” (Tr. 18.)

       Child’s professional therapist also recommended against communication with

       Father. After hearing additional evidence regarding the best interests of Child,

       the trial court granted Grandparents’ petition to adopt.


[8]    Father now appeals.



                                    Discussion and Decision
                                            Standard of Review
[9]    Father argues that the trial court abused its discretion and denied him due

       process when the court denied his motion to continue and proceeded to a

       hearing in which the court found that Father’s consent could be dispensed with.


[10]   The decision to grant or deny a motion for a continuance rests within the sound

       discretion of the trial court. In re A.D.W., 907 N.E.2d 533, 537 (Ind. Ct. App.




       5
         Although the trial court cited Indiana Code section 31-19-9-10 – a statute dispensing with parental consent
       to adoption where a parent commits neglect of a dependent or certain crimes against the child’s sibling – we
       think it is clear that the trial court’s findings related to Section 31-19-9-9 (crimes against the child’s other
       parent). The trial court clearly stated that Father’s “consent to the adoption is not necessary, given that the
       child’s Mother was the victim of his crime.” (Tr. 10.)

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015                   Page 4 of 7
       2008), trans. denied. This Court will reverse the trial court only when there has

       been an abuse of discretion. Id. An abuse of discretion may be found when the

       moving party has shown good cause for granting the motion for continuance.

       Id. However, no abuse of discretion will be found if the denial did not result in

       prejudice to the moving party. Id.


[11]   Parental consent is generally required to adopt a child in Indiana. Ind. Code §

       31-19-9-1. Parental consent is not required, however, where (1) at the time the

       petition is filed, the parent is convicted of and incarcerated for murder; (2) the

       victim of the crime is the other parent; and (3) the court determines, after notice

       to the convicted parent and a hearing, that dispensing with the parent’s consent

       is in the child’s best interests. I.C. § 31-19-9-9. Notice of the pendency of the

       adoption proceedings does not have to be given to a person whose consent is

       not required by Section 31-19-9-9. I.C. § 31-19-2.5-4.


[12]   Father argues that the trial court abused its discretion in denying his motion to

       continue because the ruling effectively denied him due process and his right to

       counsel. Specifically, he argues that because the denial prevented him from

       speaking with counsel on the phone, he “was prevented from presenting any

       evidence regarding the best interests of the child[.]” (Appellant’s Br. 6.)


[13]   Father received notice of the adoption proceedings, and received a hearing on

       the necessity of his consent. At that hearing, Grandparents introduced evidence

       of Father’s parental misconduct, specifically, that Father brutally murdered

       Mother by stabbing her in the heart while Child was present. The evidence


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015   Page 5 of 7
       included certified copies of the docket, abstract of judgment, and probable cause

       affidavits from the murder case. The court also took judicial notice of its own

       case. Based on the evidence presented, the trial court found that Father’s

       consent could be dispensed with. Implicit in the court’s finding was that it was

       in Child’s best interests to dispense with Father’s consent and to proceed to the

       final adoption. The court also heard evidence that Child was “terrified” of

       Father, when Father’s name comes up Child “goes into a bit of recession or

       hiding,” and Child’s professional therapist recommended against

       communication with Father. (Tr. 18.)


[14]   Parents have a right to counsel in proceedings to terminate the parent-child

       relationship. I.C. § 31-32-2-5. These rights apply in adoption proceedings

       where the petitioners seek to adopt over the objections of one or both of the

       natural parents. In re Adoption of Baby W., 796 N.E.2d 364, 375 (Ind. Ct. App.

       2003). Here, Father was appointed indigent counsel on June 13, 2014, four

       months prior to the hearing. Although counsel was aware of recent barriers to

       communicating with incarcerated clients, Father’s counsel did not request a

       continuance for this reason until the day of the hearing.


[15]   However, even where the moving party has shown good cause for granting the

       motion for continuance, we will not find an abuse of discretion if the denial did

       not result in prejudice to the moving party. Id. On appeal, Father fails to

       identify any evidence or additional facts related to Child’s best interests that

       Father would have presented had the court granted his motion to continue. In

       re A.D.W., 907 N.E.2d 533, 537 (Ind. Ct. App. 2008), trans. denied. Absent

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015   Page 6 of 7
       identification of such facts, we cannot say that the trial court’s denial of the

       continuance resulted in prejudice to Father, where the evidence presented

       established that Father is currently serving a 115-year sentence for murdering

       Child’s mother.



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

       continue. Having received notice and a hearing on the necessity of his consent,

       Father received the process due under the statute.


[17]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-AD-475 | July 24, 2015   Page 7 of 7
