In re the Termination of the Parent-Child Relationship of Ga.R., Gr.R., & J.R. (minor children) and D.R. (mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION FILED Aug 16 2016, 9:33 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jerry T. Drook Gregory F. Zoeller Marion, Indiana Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the August 16, 2016 Parent-Child Relationship of Court of Appeals Case No. Ga.R., Gr.R., & J.R. (minor 27A04-1512-JT-2353 children) Appeal from the Grant Superior and Court The Honorable Dana J. D.R. (mother), Kenworthy, Judge Appellant-Respondent, Trial Court Cause Nos. 27D02-1504-JT-12 v. 27D02-1504-JT-13 27D02-1504-JT-14 The Indiana Department of Child Services, Appellee-Petitioner.

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Pyle, Judge.

Statement of the Case [1] In this consolidated appeal, D.R. (“Mother”) appeals the involuntary

termination of the parent-child relationship with her children, J.R., Gr.R., and

Ga.R. (collectively, “the Children”).1 On appeal, Mother does not challenge

any of the trial court’s findings or conclusions supporting its order to

involuntarily terminate her parent-child relationship with the Children.

Instead, Mother—who had multiple notices of the termination hearing but did

not appear for it—argues that the trial court abused its discretion by denying her

attorney’s oral request for a continuance of the termination hearing made on

the day of the hearing. Because Mother did not show any good cause for the

continuance or show that she would be prejudiced, we conclude that the trial

court did not abuse its discretion by denying the oral request for a continuance

and affirm the trial court’s judgment. [2] We affirm.

Issue Whether the trial court abused its discretion by denying Mother’s counsel’s oral request for a continuance made on the day of the termination hearing.

1 J.R., Gr.R., and Ga.R. had different fathers. Gr.R.’s father, B.V., consented to the voluntary termination of his parental rights. Paternity of J.R. and Ga.R. was never established. However, J.R.’s alleged father, O.M.C., and Ga.R.’s alleged father, A.C., did not appear at the termination hearing, and their parental rights were involuntarily terminated. None of the fathers are involved in this appeal.

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Facts [3] Mother has three children: J.R., born in 2002; Gr.R., born in 2005; and Ga.R.,

born in 2007. On November 5, 2012, the Indiana Department of Child Services

(“DCS”) removed the Children from Mother’s home after the police had found,

the previous day, Mother unconscious in her home along with a plate

containing a white, powdery substance and a straw. Mother, who had been

home alone with five-year-old Ga.R., admitted to DCS that she had snorted a

Lortab pain pill. At that time, Mother was on probation from a dealing in

controlled substances conviction. DCS initially placed the Children with their

maternal grandmother (“Maternal Grandmother”) and later placed them with

relative foster parents. [4] DCS filed three individual petitions alleging that the Children were children in

need of services (“CHINS”). In these CHINS petitions, DCS alleged that

Mother had a history of abusing prescription medication and illegal substances.

Prior to the fact-finding hearing, Mother tested positive for marijuana or THC.

The trial court determined that the Children were CHINS and ordered Mother

to, among other things: refrain from using and selling illegal controlled

substances; take prescription medication in the amount and manner prescribed;

submit to random drug screens; complete a substance abuse evaluation and

follow all treatment recommendations; comply with the terms of her probation;

engage in counseling services; cooperate and maintain contact with DCS and

her family case manager; participate in supervised visitation; secure a stable

source of income; maintain appropriate housing; participate in and successfully

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complete a home-based services program; and establish paternity of J.R. and

Ga.R. [5] During the CHINS proceedings, Mother continued to have positive drug

screens. For example, on various screens between November 2013 and May

2015, Mother’s drug screens included positive results for THC, opiates,

oxycodone, cocaine, methadone, and morphine. Mother also had difficulties

actively participating in and completing required services. For instance,

Mother did not complete a substance abuse program (outpatient or inpatient)

despite her service providers’ recommendations and DCS’s arrangement of such

services. Additionally, Mother did not complete individual counseling and did

not maintain consistent contact with her DCS family case manager. [6] On April 30, 2015, DCS filed three individual petitions to terminate Mother’s

parental rights to the Children. The following week, on May 7, 2015, the trial

court held an initial hearing at which Mother was present. The trial court

appointed counsel for Mother, scheduled a preliminary hearing for July 2, 2015,

and scheduled the termination fact-finding hearing for August 5, 2015 at 9:00

a.m. The trial court also appointed a court-appointed special advocate

(“CASA”). [7] Mother appeared at the July 2, 2015 preliminary hearing, and the trial court

notified the parties that the termination hearing remained set for August 5, 2015

at 9:00 a.m. Thereafter, on July 16, 2015, Mother’s DCS family case manager

hand-delivered a “Notice of Hearing on Petition for Termination of Parent-

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Child Relationships” (“notice of termination hearing”) to Mother. (DCS’s Ex.

16). This notice of termination hearing provided that the hearing was

scheduled for August 5, 2015 at 9:00 a.m. Mother signed the notice of

termination hearing to acknowledge that she had received it. [8] On July 21, 2015, a hearing was held as part of Mother’s CHINS proceeding.

At the hearing, Mother’s counsel discussed the termination hearing date with

Mother and “requested at that time that she make sure to schedule an

appointment” before the hearing. (Tr. 3). [9] On August 5 and 20, 2015, the trial court held termination hearings on the three

termination petitions. At the time of the hearings, J.R. was twelve years old,

Gr.R. was ten years old, and Ga.R. was almost eight years old, and they had

been removed from Mother’s care for almost three years. Mother was

represented by counsel at each hearing, but she did not appear at either hearing.

At the beginning of the August 5 hearing, the trial court waited fifteen minutes

for Mother to appear and then asked Mother’s counsel about her whereabouts.

Mother’s counsel stated:

Judge, this [August 5, 2015] hearing date was discussed I believe the last time we were [in] Court on the CHINS matter. I had requested at that time that [Mother] make sure to schedule an appointment before today’s date. That did not occur. I have been attempting to contact since last week my client by phone, and the number I have indicates that the individual is not taking calls at this time. Therefore, Your Honor, since I’ve not been able to speak with my client and she’s not here today, I’ll be requesting at this time a continuance of today’s trial.

Court of Appeals of Indiana | Memorandum Decision 27A04-1512-JT-2353 | August 16, 2016 Page 5 of 10 [10] (Tr. 3-4). DCS objected to Mother’s counsel’s oral request for a continuance.

DCS stated that Mother was “well aware” of the date and time of the hearing,

noting that she had received a hand-delivered notice on July 16 and that she

had been present at a July 21 CHINS hearing where the termination hearing

date was discussed. (Tr. 4). The trial court agreed that Mother had been

notified about the hearing date and time, stating:

I would note also that [Mother] was present for her initial hearing on May 7, 2015, and the Court gave her this date and time in open court. She was also present for the preliminary fact- finding on July 2nd, 2015, and again, it says fact-finding hearing remains set [for] August 5th at 9:00[.]

(Tr. 4-5). The trial court then asked Mother’s counsel if he had “anything else .

. . on that issue?”, and counsel replied, “No, Your Honor.” (Tr. 5). The trial

court then denied Mother’s counsel’s oral request to continue the hearing,

stating:

Okay. At this time [Mother] has had multiple notices of today’s hearing, and based upon her history of again what we’ve, what we’re seeing today showing up sometimes, not showing up other times, at this point I’m going to deny the motion to continue, and we can go ahead and proceed with the trial.

(Tr. 5). [11] During the August 5 hearing, Mother’s service providers testified regarding

Mother’s sporadic participation and failure to comply with services throughout

the underlying proceedings. For example, Mother, who continued to abuse

drugs, had failed to complete any drug treatment program. They also testified

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that Mother had not remained in contact with her family case manager, had not

maintained stable housing (including having at least thirteen different

residences), and had been unable to secure consistent employment.

Additionally, the CASA testified that termination was in the Children’s best

interests given Mother’s unwillingness to complete drug treatment and

participate in services. The CASA also testified that J.R. and Gr.R. had

expressed the desire to be adopted by their relative foster parents. Mother’s

counsel cross-examined all six of DCS’s witnesses and requested that the trial

court take judicial notice of two progress reports from the underlying CHINS

proceeding. [12] At the beginning of the August 20 hearing, Mother’s counsel informed the trial

court that he had left a voicemail for Mother regarding the termination hearing

but had not heard from her. Mother’s counsel did not renew his request to

continue the hearing. During the hearing, the parties entered a stipulation to

DCS’s Exhibits 18, 19, and 20-A through 20-P. Exhibit 20 consisted of the

numerous positive drug screen results that Mother had between November

2013 and May 2015 during the CHINS and termination proceedings.

Thereafter, in December 2015, the trial court entered a detailed order

involuntarily terminating Mother’s parental rights to the Children. Mother now

appeals.

Decision [13] On appeal, Mother does not challenge any of the trial court’s findings or

conclusions supporting its order to involuntary terminate her parent-child Court of Appeals of Indiana | Memorandum Decision 27A04-1512-JT-2353 | August 16, 2016 Page 7 of 10

relationship with the Children. Instead, she presents a single issue for our

review and contends that the trial court abused its discretion by denying her

oral request for a continuance. [14] Pursuant to our Indiana Trial Rules, “[u]pon [a] motion” to continue a trial

filed by a party, a trial court has “discretion” to “postpone[] or continue[]” the

trial. Ind. Trial Rule 53.5. “[A] trial court shall grant a continuance upon

motion and ‘a showing of good cause established by affidavit or other

evidence.’” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009) (quoting Ind.

Trial Rule 53.5) (emphasis added). “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, 243-44 (Ind. 2014) (citing Rowlett v. Vanderburgh

Cnty. Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans.

denied). “‘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. (quoting

Rowlett, 841 N.E.2d at 619). [15] “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.” J.P. v. G. M., 14 N.E.3d 786,

790 (Ind. Ct. App. 2014) (quoting Ungar v. Sarafite, 376 U.S. 575, 589-590

(1964), reh’g denied). Continuances to allow time for additional preparation are

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generally disfavored and require a showing of “good cause” and how “it is in

the interests of justice.” Williams v. State, 681 N.E.2d 195, 202 (Ind. 1997). See

also Clodfelder v. Walker, 125 N.E.2d 799, 800 (Ind. 1955) (explaining that a

motion for continuance should be made at the earliest practicable time after

knowledge of the necessity for a continuance). Furthermore, “[a] continuance

requested for the first time on the morning of trial is not favored.” Lewis v.

State, 512 N.E.2d 1092, 1094 (Ind. 1987). [16] Mother argues that the trial court’s denial of her counsel’s oral continuance

request was erroneous because the trial court should have given her counsel the

opportunity “to contact [her] and get her to the TPR hearing[.]” (Mother’s Br.

22). She does not contend that she had, or that her trial counsel presented, any

“good cause” for the continuance. Nor does she show how she was prejudiced

by the denial. Mother merely states the trial court should have given her the

opportunity to present evidence “regarding what was best for [her] children”

and that a continuance “would have had no negative effect upon the

[C]hildren.” (Mother’s Br. 22, 23). [17] We conclude, however, that the trial court’s denial of Mother’s counsel’s

continuance request was not an abuse of discretion. Mother’s counsel

requested the continuance by an oral motion on the day of trial and not by a

motion supported by an “affidavit or other evidence” or a “showing of good

cause” as required by Trial Rule 53.5. Additionally, Mother’s counsel’s neither

articulated any good cause for the continuance nor asserted that she would be

prejudiced. Instead, counsel stated that Mother was aware of the hearing but

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had failed to appear. Before denying Mother’s counsel’s continuance request,

the trial court noted that Mother had received notice, on multiple days, of the

August 5 termination hearing. Given the deference to the trial court’s decision

on this matter, we conclude that the trial court did not abuse its discretion by

denying Mother’s counsel’s oral request for a continuance made on the

morning of trial. See, e.g., Gunashekar, 915 N.E.2d at 956 (affirming the trial

court’s denial of a motion to continue the bench trial).2 [18] Affirmed.

Bradford, J., and Altice, J., concur.

2 In support of her argument that the trial court abused its discretion by denying her oral continuance request, Mother also relies on Rowlett. We find Mother’s reliance misplaced as her circumstances are easily distinguishable from Rowlett. Unlike Rowlett, Mother—who was not incarcerated and had the actual opportunity to appear at the termination hearing, had been given multiple opportunities to participate in services offered by DCS, and moved for her continuance on the day of the hearing—did not show good cause for her continuance request.

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