MEMORANDUM DECISION
                                                                 Sep 18 2015, 8:30 am
Pursuant to Ind. Appellate Rule 65(D),
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 APPELLANTS                                  ATTORNEYS FOR APPELLEE
Daniel L. Askren                                         Gregory F. Zoeller
O’Connor and Askren Law Office                           Attorney General of Indiana
Attica, 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                         September 18, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of M.C. (Minor Child),                                   23A04-1503-JT-114
                                                         Appeal from the Fountain Circuit
and                                                      Court
                                                         The Honorable Susan Orr
K.P. (Mother) and C.C. (Father),                         Henderson, Judge
Appellants-Respondents,                                  Trial Court Cause No.
                                                         23C01-1411-JT-170
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 1 of 16
      Crone, Judge.


                                            Case Summary
[1]   K.P. (“Mother”) and C.C. (“Father”) (collectively “Parents”) appeal the trial

      court’s termination of their parental relationship with their daughter M.C.

      They challenge the trial court’s denial of their oral motion for continuance on

      the day of the final hearing. They also submit that the trial court erred in

      determining that there is a reasonable probability that the conditions that led to

      M.C.’s removal will not be remedied. Finding that the trial court acted within

      its discretion in denying Parents’ last-minute motion for continuance and that

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

      probability that conditions would not be remedied, we affirm.


                              Facts and Procedural History
[2]   M.C. was born to Parents out of wedlock on February 27, 2013, and Father’s

      paternity was legally established. In August 2013, she was admitted to Riley

      Hospital due to medical neglect and failure to thrive. Photographic exhibits

      and hospital records indicate that she was emaciated, malnourished, and

      lethargic, had insect bites all over her face, had a foul odor, and could not move

      or lift her head. Medical records indicate that she lost two pounds from June to

      August 2013. The Department of Child Services (“DCS”) removed her from

      Parents’ care and placed her with her maternal grandfather (“Grandfather”) and

      step-grandmother (collectively “Grandparents”) upon her release from the

      hospital.

      Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 2 of 16
[3]   On August 26, 2013, DCS filed a petition seeking to have M.C. designated a

      child in need of services (“CHINS”), and Parents denied the CHINS allegations

      at a detention hearing held the same day. Factfinding and dispositional

      hearings followed, and the trial court designated M.C. a CHINS. Parents failed

      to appear at the November 2013 dispositional hearing, and joint counsel

      appeared on their behalf. The trial court subsequently issued a permanency

      order with concurrent plans of reunification with Parents and guardianship for

      Grandparents. The court ordered Father to participate in couples counseling,

      individual counseling, and supervised visitation. The court ordered Mother to

      participate in mental health and parenting assessments, case management,

      visitation, and couples counseling. Mother was arrested and incarcerated twice

      during the pendency of the CHINS case.


[4]   In November 2014, DCS filed a petition to terminate Parents’ relationship with

      M.C. The trial court held a periodic review hearing in early December.

      Parents were present when the trial court set the final hearing date of February

      5, 2015. The trial court found that Parents had not fully complied with the case

      plan, had not cooperated with DCS, and had not alleviated the cause of M.C.’s

      removal or supervision. DCS ordered additional services for Father, including

      a parenting assessment followed by referrals for home-based case management

      and individual counseling to address his substance abuse and stress issues.

      DCS also referred Mother for individual therapy to address issues such as her

      substance abuse, conflict resolution, and stress management.




      Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 3 of 16
[5]   Parents did not attend the February 5, 2015 termination hearing but were

      represented by counsel. At the outset of the 9:00 a.m. hearing, counsel

      requested a continuance based on Parents’ absence. Court personnel notified

      the trial court that Mother had called the court at 8:00 a.m. and indicated that

      she and Father were running late due to road conditions. At 9:15 a.m., the trial

      court acknowledged the road conditions, denied the request for continuance,

      and proceeded with the witnesses who were present. Parents never appeared.

      Counsel renewed Parents’ continuance motion at the close of the hearing, and

      the trial court denied it.


[6]   Based on the evidence, the trial court concluded that it is in M.C.’s best

      interests that Parents’ rights be terminated and that she be adopted by

      Grandfather. The trial court issued an order containing findings of fact and

      conclusions thereon terminating the parent-child relationship. Parents now

      appeal. Additional facts will be provided as necessary.


                                   Discussion and Decision

      Section 1 – The trial court acted within its discretion in
           denying Parents’ last-minute oral motion for
                            continuance.
[7]   Parents challenge the trial court’s denial of their oral motion for continuance

      made by counsel at the February 2015 termination hearing when they failed to

      appear. 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.


      Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 4 of 16
      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.

      2005), trans. denied (2006). 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 he was prejudiced by the denial of his

      continuance motion. J.P., 14 N.E.3d at 790.


[8]   Parents characterize the denial of their motion for continuance as a denial of

      their 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

      Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 5 of 16
              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.


[9]   Ungar specifically addressed a request for continuance to engage counsel. Id.

      Here, counsel attended the hearing but Parents did not. The transcript indicates

      that Mother contacted the court one hour before the scheduled start time and

      indicated that she and Father would be late due to weather conditions. The

      trial court acknowledged the road conditions but allowed counsel to proceed in

      questioning witnesses and presenting evidence on behalf of Parents, who failed

      to appear at all. Grandfather, who testified that he lived in the same

      community as Parents, 1 told the court that the roads were in drivable condition

      and that he had no problem getting to the hearing. Tr. at 115. This sentiment

      was echoed by others present in the courtroom. In denying Parents’ motion for

      continuance, the trial court found as follows:

              Parents were in court on Dec. 2, 2014 when said hearing date
              was set. Parents have not maintained contact with their counsel.
              Counsel, on behalf of their client, each move the court for a



      1
        The record indicates that Mother and Father both changed housing arrangements several time during the
      pendency of the proceedings. Grandparents lived in Newport. Mother lived in Newport at one point in
      January 2015. Of the surrounding towns in which Mother and Father had lived, none was more than 22
      miles from the court, and each was adjacent to a U.S. highway.

      Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015     Page 6 of 16
               continuance of the hearing. No cause was shown to the court
               why the parents failed to appear and motion for continuance is
               denied.


       Appellants’ App. at 12.


[10]   We agree that Parents failed to demonstrate good cause for missing the hearing.

       We note that Father has a history of failing to appear, having been arrested on a

       failure to appear warrant in connection with his 2014 domestic battery charge,

       and that Parents previously failed to appear for a 2013 CHINS hearing and

       were represented by counsel. As for the termination hearing, the only message

       that the trial court received was Mother’s 8:00 a.m. phone message stating that

       she and Father were running late due to bad weather. However, the weather

       did not prevent counsel, other witnesses, the trial court, or court personnel from

       attending, and Mother’s phone message to court personnel indicated that they

       would merely be late and presumably were on their way. The hearing actually

       started at 9:15 a.m. The 122-page transcript indicates that there was at least one

       recess and that the hearing was long enough to have afforded Parents the time

       to travel the approximately twenty miles on roads that witnesses and counsel

       had described as drivable. As such, the record was not closed before Parents

       had an opportunity to arrive and be heard. Moreover, Parents’ failure to

       maintain contact with counsel for the weeks preceding the hearing shows that

       they had little interest in assisting in the preparation and presentation of their

       case. Nevertheless, counsel attended the hearing and questioned witnesses on

       their behalf. In short, Parents were not deprived of fundamental fairness in the


       Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 7 of 16
       presentation of their case. Based on the foregoing, we find no abuse of

       discretion in the trial court’s denial of counsel’s last-minute request for

       continuance.


           Section 2 – The trial court did not clearly err in
        determining that there is a reasonable probability that
        the conditions leading to M.C.’s removal will not be
                              remedied.
[11]   Parents challenge the sufficiency of evidence supporting the trial court’s

       judgment terminating their parental relationship with M.C. 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.

       Rather, we consider only the evidence and inferences most favorable to the

       judgment. Id.


[12]   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
       Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 8 of 16
               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).


[13]   To obtain a termination of the parent-child relationship between Parents and

       M.C., 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:


                        (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;


       Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 9 of 16
               (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).


[14]   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 very 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).


[15]   Here, Parents challenge only the trial court’s determination that there is a

       reasonable probability that the conditions that led to M.C.’s removal will not be

       remedied. As such, we need not address the other statutory elements. 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

       Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 10 of 16
       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

       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).


[16]   Here, the trial court issued extensive findings of fact, and Parents have not

       specifically challenged any of those findings. Instead, they make general

       assertions referencing their early participation in services aimed toward

       reunification. As such, we are left to determine whether the unchallenged

       findings support the judgment. As they concern the reasonable probability of

       remedied conditions, the unchallenged findings include the following: 2


                3. There is clear and convincing evidence that a reasonable
                probability that the conditions that resulted in the removal of the




       2
         To the extent that the trial court’s findings refer to Parents and M.C. by name, we have altered those
       references accordingly.

       Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015         Page 11 of 16
        child[] from the home will not be remedied. The court bases its
        findings on the following factors:


        a.       The family became involved with Fountain County [DCS]
                 as a result of an allegation of abuse and neglect of the child
                 after her admission to Riley Hospital in August of 2013.
                 The child was born on Feb. 27, 2013 and was admitted to
                 Riley Hospital at 6 months of age to determine why she
                 was losing weight. The assessment officer, Sonja Janssen
                 Luper, testified that her observations of the child showed
                 an infant with no body fat and emaciated; she was
                 lethargic and unable to raise her head. She had a foul
                 smell and her clothing was dirty. Photographs admitted as
                 DCS Ex. 2-5 accurately confirm those observations. The
                 child was clearly failing to thrive under her Parents[’] care
                 and was in serious medical condition. She appeared
                 covered in insect bites on her head and face.


        b.       The child was adjudicated a CHINS on Oct. 10, 2013.
                 Parents were not married but DNA testing conducted
                 while case was pending established Father as M.C.’s father
                 and legal paternity was established. The dispositional
                 decree entered on Nov. 13, 2013 ordered the Parents to
                 participate in services. Mother was ordered to participate
                 in a mental health assessment and parenting assessment
                 and comply with recommendations thereof; case
                 management; supervised visits and couple’s counseling.
                 Father was ordered to participate in individual and couples
                 counseling as well as supervised visits.


        c.       After child was adjudicated a CHINS and before services
                 could be put in place, parents relocated from Fountain
                 County to northern Indiana. Mother was arrested and
                 prosecuted in Vermillion County Indiana for check
                 deception. Father returned to his [m]other’s home in
                 Kingman, Indiana. Mother remained jailed from
Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 12 of 16
                 immediately after disposition until Feb. 27, 2014. Upon
                 her release from incarceration, Mother engaged in services
                 and completed the mental health and parenting
                 assessments; participated in supervised visits and
                 commenced couples counseling. Father participated in the
                 Fatherhood Engagement, substance abuse treatment and
                 supervised visits. Generally from Feb. 2014 to the review
                 hearing on May 15, 2014 parents were compliant with
                 services and working toward the goal of reunification.
                 Child was thriving in relative care, gaining weight and
                 starting to reach appropriate development goals.


        d.       Parents were unable to sustain their relationship and both
                 were arrested for Battery/Domestic Battery in July of
                 2014. Mother was arrested for probation violation for the
                 check deception charges and remained in jail on both the
                 probation violation and the battery charges until sometime
                 in Nov. 2014. Parents continued to struggle with
                 substance abuse issues, but for the vast majority of screens
                 obtained, Mother remained clean. Father had more failed
                 screens and was not compliant with the court’s order to
                 participate in random screens. Parents generally
                 participated in supervised visits and had moved to semi-
                 supervised during the Spring/Summer of 2014. Parents
                 were no longer living with one another and it was
                 anticipated that the child would be going to Mother’s for a
                 trial home visit. This goal was not reached after Mother
                 was re-arrested.


        e.       Father also was charged as a result of the July incident and
                 failed to appear in court when ordered to do so. He was
                 arrested on a failure to appear warrant and the court is
                 uncertain when he was released from jail. During
                 mother’s period of incarceration, Father lived with his
                 mother, moved into a trailer, moved back to his mother’s
                 and did not maintain stable housing. Father participated

Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 13 of 16
                 in services with the Fatherhood Engagement, but was not
                 invested in the benefits of individual therapy and that
                 service[] was discontinued. From the Fall into winter of
                 2014 Father missed 3 visits with the child and since Dec.
                 2014 has not seen the child at all. Father was ordered to
                 provide proof of employment and submit a budget to
                 DCS. He has failed to do so. Father’s ability to maintain
                 a job is uncertain as he has fail[ed] to provide DCS with
                 his employment information;


        f.       Upon Mother’s release from jail, she live[d] with her
                 grandmother until a few weeks of this hearing. Mother
                 was hospitalized on what was reported to be an overdose
                 of some drug and was not allowed to return to
                 grandmother’s home upon her release from the hospital.
                 Mother’s whereabouts are currently unknown. Although
                 Mother was incarcerated during a large period of time
                 while this case was pending, her initial compliance with
                 services were indicative of her level of commitment for
                 reunification. However, following her release from
                 incarceration in Nov. 2014 she has not demonstrated any
                 interest or willingness to re-engage in services or
                 participate in visits with the child;


        g.       Despite initial compliance and efforts to cooperate and
                 participate in services, the parents have been unable to
                 sustain progress to effectuate a reunification. Based on
                 parents’ lack of cooperation, their failure to maintain
                 contact with service providers and demonstrated lack of
                 involvement in this case since Nov. 2014 indicates to the
                 court continuing to offer services would be ineffectual[];


        h.       …. Parents have been unable to sustain employment,
                 suitable housing, or a drug free lifestyle. These are
                 ongoing problems and do not appear that any
                 improvement in their circumstances will be happening in
Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 14 of 16
                        the near future. The child has been in [and] out of home
                        placement for seventeen months and needs a permanent
                        and stable home[.]


       Appellants’ App. at 13-15.


[17]   The initial basis for removal, medical neglect, is depicted in startling

       photographic exhibits showing M.C.’s emaciated, bony frame, hanging skin on

       her legs, and numerous insect bites on her face and head. Petitioner’s Exs. 2-5.

       The listless six-month-old baby had lost two pounds from her already tiny

       frame and could not lift her head. She eventually needed leg braces and began

       to show progress after she was placed with Grandparents. The trial court’s

       unchallenged findings emphasize Mother’s and Father’s individual inability to

       sustain progress due to their own instability in housing and employment as well

       as their failure to avoid drug use and other criminal conduct. We are sensitive

       to situations in which a parent’s incarceration hinders participation in services

       but note that when Mother was released after her second stint of incarceration,

       she did not resume services. She briefly resumed visits with M.C. after her

       release but did not visit her at all for several weeks leading up to the final

       hearing. Sadly, Mother instead resumed her drug use and was briefly

       hospitalized due to an overdose. Likewise, Father did not avail himself of

       visitation in the weeks preceding the termination hearing. As with services,

       Parents failed to earnestly commit to consistent visitation with M.C. 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


       Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 15 of 16
       commitment to complete actions necessary to preserve parent-child

       relationship), trans. denied.


[18]   In sum, M.C. was in serious physical jeopardy when she arrived at Riley

       Hospital and was removed from Parents’ care. Although Parents initially took

       steps toward reunification with her, they could not sustain their progress due to

       their own instabilities and patterns of destructive conduct. In other words, they

       could not maintain a consistent positive relationship with M.C. because they

       could not maintain consistent positive patterns in their own lives. “[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. The trial court did not clearly err in determining that there is a

       reasonable probability that the conditions that led to M.C.’s removal will not be

       remedied. Accordingly, we affirm its termination order.


[19]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 23A04-1503-JT-114 | September 18, 2015   Page 16 of 16
