                                                                          Nov 23 2015, 8:22 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Amy Karozos                                               Gregory F. Zoeller
Greenwood, Indiana                                        Attorney General of 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                          November 23, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.E. (Minor Child),                                    49A05-1505-JT-437
                                                          Appeal from the Marion Superior
and                                                       Court
                                                          The Honorable Marilyn A.
K.E. (Father),                                            Moores, Judge
Appellant-Respondent,
                                                          The Honorable Larry E. Bradley,
        v.                                                Magistrate
                                                          Trial Court Cause No.
The Indiana Department of                                 49D09-1410-JT-419
Child Services,
Appellee-Petitioner




Crone, Judge.



Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015                      Page 1 of 12
                                               Case Summary

[1]   K.E. (“Father”) appeals a trial court order terminating his parental relationship

      with his one-year-old son J.E. He challenges only the trial court’s denial of his

      motion for continuance and motion for order to transport. 1 Finding that the

      trial court acted within its discretion in denying Father’s motions, we affirm.


                                Facts and Procedural History
[2]   In October 2013, Father was charged with class D felony synthetic identity

      deception in Hamilton County and released on recognizance. In December

      2013, his girlfriend J.B. (“Mother”) gave birth to his son J.E. Due to housing

      issues and Mother’s past involvement with the Department of Child Services

      (“DCS”), J.E. was removed from Mother and Father at two days old and

      placed in foster care. Father visited J.E. once shortly after his removal.


[3]   Later that same month, Father failed to appear at a pretrial hearing in his

      identity deception proceedings and was jailed pending trial. In March 2014, he

      pled guilty and was sentenced to 1095 days, with 915 of those suspended to




      1
         In a footnote, Father states that he does not challenge the trial court’s findings or conclusions concerning
      best interests of the child or satisfactory plan for the care and treatment of the child. Appellant’s Br. at 12
      n.9. To the extent that this statement implies an intent to challenge the trial court’s findings or conclusions
      on the remaining elements found in Indiana Code Section 31-35-2-4(b)(2), we note that Father has not
      developed any cogent argument as to them. As such, he has waived appellate review of the trial court’s
      findings and conclusions on these elements. Ind. Appellate Rule 46(A)(8); see also A.D.S. v. Ind. Dep’t of Child
      Servs., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013) (finding that mother who failed to raise specific
      arguments regarding trial court’s findings on certain statutory elements waived review of those findings),
      trans. denied.

      Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015                         Page 2 of 12
      probation. He attended a March 17, 2014 CHINS hearing in Marion County,

      where the trial court designated J.E. a CHINS and ordered Father to participate

      in home-based counseling, a father engagement program, and supervised

      visitation. 2 Father visited J.E. once shortly after the CHINS hearing and did

      not visit again.


[4]   In July 2014, the Hamilton County court revoked Father’s probation for failure

      to report and remanded him to the Department of Correction (“DOC”). Father

      did not complete any of his ordered services during the time he was out of jail

      or while he was incarcerated.


[5]   During a permanency hearing in September 2014, DCS requested that the

      permanency plan be changed to termination and adoption. In October 2014,

      DCS filed a petition for termination of parental rights, and the trial court set the

      matter for initial hearing. Due to some problems with service of process on

      Father, the trial court granted several continuances. In January 2015, Father

      was served and signed an advisement requesting the appointment of counsel.


[6]   Father was not present at a February 2015 pretrial hearing due to incarceration,

      but counsel was present and filed a motion for continuance, requesting that the

      termination factfinding hearing be reset for a date after his projected release in




      2
        The trial court eventually also terminated Mother’s parental rights to J.E., but she is not participating in
      this appeal. Thus, we limit our discussion to issues concerning Father.

      Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015                          Page 3 of 12
      July 2015. DCS objected, and the trial court denied the motion and set the

      hearing for March 16, 2015.


[7]   As an alternative to a continuance, on February 23, 2015, Father requested an

      order to transport him from the correctional facility in Edinburgh to the

      termination factfinding hearing in Indianapolis. The trial court denied his

      motion and ordered that he participate by video conference or telephone.

      When it was discovered that the correctional facility lacked the equipment for a

      video feed, Father renewed his motion for order to transport. The trial court

      denied the motion and ordered that Father participate telephonically. When

      the termination factfinding hearing was continued to April 29, 2015 due to

      scheduling conflicts, Father again requested a continuance until after his

      projected July 2015 release date, which the trial court denied. At the final

      hearing on April 29, 2015, Father was present by counsel and by telephone.

      Counsel again renewed the request for a transport order, which was denied.


[8]   On May 8, 2015, the trial court issued an order with findings of fact and

      conclusions thereon terminating Father’s parental relationship with J.E. Father

      now appeals. Additional facts will be provided as necessary.


                                   Discussion and Decision

      Section 1 – The trial court acted within its discretion in
            denying Father’s motion for continuance.
[9]   Father challenges the trial court’s denial of his motion to continue the

      termination factfinding hearing until after his release from incarceration. The

      Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015   Page 4 of 12
       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 he was prejudiced by the denial of his

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


[10]   Father characterizes the denial of his motion for continuance as a denial of his

       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.

       This does not mean that parents have an absolute right to be physically present

       at the termination hearing. In re K.W., 12 N.E.3d 241, 248-49 (Ind. 2014). The

       United States Supreme Court addressed the due process requirement in

       Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015   Page 5 of 12
       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.


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


[11]   Here, counsel attended the termination factfinding hearing in person on

       Father’s behalf and requested that the hearing be continued until after Father’s

       expected date of release from the DOC (about four months). Father had been

       remanded to the DOC based on his failure to adhere to his probation reporting

       requirements. In considering the efficacy of a continuance, the trial court could

       reflect on Father’s patterns with respect to attendance, communication, and

       participation when he was not incarcerated. See, e.g., Appellant’s App. at 15-16

       (trial court’s findings, all of which are unchallenged, describing Father as

       “missing” hearings and meetings, “fail[ing] to appear,” and making “himself

       unavailable,” as well as statements that he “did not participate” and “did not

       visit.”). Father’s lack of communication with counsel shows that he had little

       interest in assisting in the preparation of his case. Even so, during the

       Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015   Page 6 of 12
       termination hearing, the trial court cleared the courtroom and afforded him the

       opportunity to consult privately with counsel. In this way, Father was afforded

       the opportunity to assist in the presentation of his case. Simply put, counsel

       presented evidence and questioned witnesses on Father’s behalf, and Father

       participated in the hearing telephonically. Father has failed to establish how he

       would have better assisted counsel in preparing and presenting his case had a

       continuance been granted. Thus, he 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 his request for

       continuance.


       Section 2 – The trial court acted within its discretion in
           denying Father’s motion for order to transport.
[12]   In a closely related argument, Father maintains that the trial court abused its

       discretion in denying his motion for order to transport him from the

       correctional facility in Edinburgh to the courtroom in Indianapolis. As stated, a

       parent does not have an absolute right to be physically present during a

       termination hearing. C.G., 954 N.E.2d at 921. The decision whether to permit

       an incarcerated parent to be transported to court in termination proceedings is a

       matter within the trial court’s sound discretion. Id. at 922.


[13]   In C.G., our supreme court addressed the varying approaches to transport

       orders and adopted the approach taken by West Virginia courts, which states




       Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015   Page 7 of 12
       that in exercising its discretion, the trial court should balance the following

       factors:

               (1) The 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. at 922-23 (quoting State ex rel. Jeanette H. v. Pancake, 529 S.E.2d 865, 877

       (W.Va. 2000)) (footnote omitted).


[14]   When Father first requested an order to transport him from Edinburgh to

       Indianapolis for the termination proceedings, the trial court ruled that he could

       appear by video feed. He later renewed his motion, and counsel noted that the

       Edinburgh facility was not equipped to allow inmates to testify by video. The

       trial court denied the motion and ordered that Father testify telephonically. At

       the final factfinding hearing, Father again renewed his motion for order to

       transport. The trial court denied the renewed motion and emphasized that it

       Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015   Page 8 of 12
       had considered the C.G. factors in making its ruling. See Tr. at 9-10 (“the Court

       did consider the factors that were handed down in the … Indiana Supreme

       court case in the matter of C.G. … and denied the motion to transport. If

       [Father] were closer, that would be a consideration by far. This is … the best

       way we can have him appear”).


[15]   In his brief, Father goes through each of the eleven factors outlined in C.G. and

       decries the absence of a trial court finding on each of the factors. However,

       C.G.’s list comprises factors to be considered, not elements to be proven. 954

       N.E.2d at 922-23. The list is clearly nonexhaustive, as factor eleven reads, “any

       other relevant factors.” Id. at 923. There is nothing in C.G. to indicate that the

       trial court must make findings, written or otherwise, on each and every factor

       on the list. In making its final ruling on Father’s motion, the trial court clearly

       stated that it had considered the factors outlined in C.G. and then specifically

       emphasized the factors that it found compelling, that is, the cost and

       inconvenience factor and the availability of testimony by another reasonable

       means. We do not read C.G. to require the trial court to specify that it did not

       find certain factors compelling or even relevant to Father’s case. In other

       words, having considered the logistical issues surrounding an order to transport

       an inmate from the Edinburgh correctional facility to the juvenile courtroom in

       Indianapolis, the court reasoned that Father’s participation could be achieved

       by another means. Having first attempted to secure his participation by video

       feed and been notified that a video feed was unavailable, the court secured

       Father’s attendance by telephone. Father’s telephonic participation did not


       Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015   Page 9 of 12
       merely amount to phoning in his testimony and hanging up. Rather, he was

       connected such that he could hear witness testimony and counsel’s arguments

       before the court, as well as the court’s responses and pronouncements. At one

       point, the trial court had to caution Father for interrupting an in-court witness

       during her testimony. Tr. at 52. As in C.G., the trial court undertook the

       procedural safeguard of clearing the courtroom to afford Father the opportunity

       to confer privately with counsel by phone. C.G., 954 N.E.2d at 921.


[16]   Father posits that the outcome of his case hinged on a dispute between himself

       and DCS family case manager Betty Kubwalo (“the FCM”) as to whether he

       had been made aware of the services in which he was expected to participate.

       In other words, he asserts that the trial court abused its discretion by failing to

       consider that taking his testimony by telephone would affect the court’s ability

       to judge his credibility, thus adversely affecting the “probability of his …

       ultimate success on the merits.” Id. at 923. Father correctly asserts “that trial

       judges are in the best place to assess witness credibility, and by not having a

       parent present at a termination hearing, a trial judge is not as easily able to

       ascertain the credibility of a witness over the phone.” Id. at 921. Nevertheless,

       we are unpersuaded by his claim that his case turned on the resolution of the

       dispute between himself and DCS concerning his knowledge of the services

       offered. First, “the law concerning termination of parental rights does not

       require [DCS] to offer services to the parent to correct the deficiencies in

       childcare.” In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000). Moreover,

       despite the disagreement between Father and the FCM as to who had had


       Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015   Page 10 of 12
       access to whose contact information and who should have initiated phone

       contact concerning services, Father admitted (1) that he remembered the

       CHINS court having ordered him to participate in certain services; (2) that the

       FCM was present but he did not ask her how to complete the services; and (3)

       that he “should’ve asked her.” Tr. at 38-39. With respect to visitation, Father

       visited J.E. only twice since his birth, once just days after J.E. was born and

       once during the four months he was not incarcerated. Sadly, he admitted that

       he had decided to forgo opportunities to visit J.E. because he “was going

       through so much stuff,” “couldn’t bear to go see [his] child,” and thought he

       “would just bypass that [and] get [his] stuff together.” Id. at 20.


[17]   Finally, we find it unfortunate that Father, having made himself unavailable for

       these proceedings due to incarceration based on his previous failures to appear

       and report, did not appear when he was free and ordered to do so. The trial

       court considered the factors outlined in C.G. and found a reasonable alternate

       means of securing Father’s participation in the termination factfinding hearing.

       The record confirms that in addition to being represented in person by counsel,

       Father was himself engaged in the hearing. His telephonic participation

       effectively afforded him “the opportunity to be heard at a meaningful time and

       in a meaningful manner.” C.G., 954 N.E.2d at 917. Based on the foregoing, we

       conclude that the trial court acted within its discretion in denying his motion for

       order to transport. Accordingly, we affirm.




       Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015   Page 11 of 12
[18]   Affirmed.




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




       Court of Appeals of Indiana | Opinion 49A05-1505-JT-437 | November 23, 2015   Page 12 of 12
