FOR PUBLICATION FILED
Apr 27 2012, 8:25 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT V.S.: ATTORNEYS FOR APPELLEE INDIANA
DEPARTMENT OF CHILD SERVICES:
HAROLD E. AMSTUTZ
Lafayette, Indiana LUMINITA NODIT
Indiana Department of Child Services
Tippecanoe County Local Office
Indianapolis, Indiana
ROBERT J. HENKE
Indiana Department of Child Services
Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF: V.C., )
CHILD ALLEGED TO BE IN NEED )
OF SERVICES: )
)
V.S., )
)
Appellant-Respondent )
)
vs. ) No. 79A02-1112-JC-1172
)
INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Loretta H. Rush, Judge
The Honorable Faith Graham, Magistrate
Cause No. 79D03-1108-JC-181
April 27, 2012
OPINION - FOR PUBLICATION
BRADFORD, Judge
Appellant-Respondent V.S. (“Father”) appeals the juvenile court’s determination that
V.C. is a Child in Need of Services (“CHINS”). On appeal, Father contends that the juvenile
court erroneously denied his procedural due process rights by denying his requests to issue a
subpoena to a potential witness and for a continuance of the fact-finding hearing. Father also
contends that a CHINS determination was unnecessary because a suitable relative placement
existed at the time V.C. was removed from Mother’s care.1 We affirm.
FACTS AND PROCEDURAL HISTORY
The Indiana Department of Child Services (“DCS”) was involved with Mother and
V.C. prior to the initiation of the instant CHINS proceedings. V.C. had previously been
determined to be a CHINS because Mother’s mental state had deteriorated to the point where
Mother could no longer care for V.C. The prior CHINS proceeding was successfully
terminated after Mother’s mental state improved to the point where DCS representatives
believed that Mother could adequately care for V.C. At the conclusion of the prior CHINS
proceedings, Mother was instructed to continue certain services on her own, and her sister,
V.C.’s maternal aunt, was approved to care for V.C. for short periods of time if Mother’s
mental state deteriorated to the point that Mother required a short break from V.C.
1
Mother admitted below that V.C. is a CHINS, and, as such, does not appeal the juvenile court’s
determination to that effect.
2
On or about August 26, 2011, Mother contacted the Lafayette Police Department and
reported that she required assistance because her mental state had deteriorated to the point
where she could no longer provide suitable care for V.C. Officer James Jarred spoke with
Mother and contacted Michael Tajc of DCS. Tajc spoke to Mother who again reiterated that
her mental state had deteriorated to the point that she was unable to provide suitable care for
V.C. Mother informed Tajc that V.C.’s father was incarcerated and that she had family
members who may be willing to accept custody of V.C., but refused to provide Tajc with
these family members’ names.
As a result of Tajc’s conversations with Mother, on August 30, 2011, DCS filed a
Request for Taking Custody and a Request for Filing of CHINS with the juvenile court. On
this same date, the juvenile court entered an order finding that Father would be incarcerated
in the Department of Correction (“DOC”) until approximately September 22, 2016, and
ordered that Father should appear at all hearings telephonically. On August 31, 2011, DCS
filed a petition alleging that V.C. is a CHINS. The juvenile court conducted a detention
hearing at the conclusion of which it found that probable cause existed to believe that V.C. is
a CHINS and granted DCS temporary wardship over V.C.
On September 9, 2011, the juvenile court conducted an initial hearing at which Mother
admitted the CHINS allegations. Father denied the CHINS allegations, asserted that he was
aware of his rights, and stated that he did not need an attorney. The juvenile court set the
matter for a fact-finding hearing.
3
On September 30, 2011, Father requested that the juvenile court issue a subpoena to
V.C.’s maternal aunt and filed an affidavit asserting that he believed that maternal aunt
would testify to a willingness to accept custody of V.C. Father did not include maternal
aunt’s address or any other contact information for maternal aunt in his affidavit. The
juvenile court did not issue the subpoena because Father had failed to provide the court with
maternal aunt’s address.
On October 13, 2011, the juvenile court conducted a fact-finding hearing at which
Father appeared telephonically. Father requested a continuance of the hearing for the
purpose of securing maternal aunt’s testimony regarding her potential willingness to accept
custody of V.C. DCS agreed to stipulate that maternal aunt would indicate a willingness to
be considered as a relative placement of V.C. The juvenile court denied Father’s request for
a continuance, went forward with the fact-finding hearing, and heard evidence presented by
both DCS and Father. At the conclusion of the fact-finding hearing, the juvenile court
determined that V.C. was a CHINS. The juvenile court proceeded to conduct a disposition
hearing following which it ordered that V.C. remain in foster care. On December 14, 2011,
Father filed a Motion to Correct Error, which was denied by the juvenile court. This appeal
follows.
DISCUSSION AND DECISION
I. Whether the Juvenile Court Denied Father’s Procedural Due Process Rights
Father contends that the juvenile court denied his procedural due process rights by
erroneously denying his requests to issue a subpoena to V.C.’s maternal aunt and for a
4
continuance of the fact-finding hearing. Indiana Code section 31-32-2-3(b) (2011) provides
that during a CHINS proceeding, a parent is entitled to (1) cross-examine witnesses, (2)
obtain witnesses or tangible evidence by compulsory process, and (3) introduce evidence on
his behalf. In the instant matter, Father alleges that the juvenile court’s denial of his request
to issue a subpoena to maternal aunt and its subsequent denial of his request for a
continuance of the fact-finding hearing violated his procedural due process rights because the
denials limited his opportunity to obtain witnesses by compulsory process and to introduce
evidence on his behalf.2
A. Issuance of a Subpoena
Father argues that the juvenile court erroneously failed to issue his requested subpoena
to maternal aunt. Father claims that it was necessary to subpoena maternal aunt because he
believes that maternal aunt would have indicated a willingness to accept custody of V.C.
rather than having V.C. placed in foster care. The juvenile court denied Father’s request to
issue a subpoena to maternal aunt because Father “failed to provide addresses for persons he
wishes to subpoena.”3 Appellant’s App. p. 35.
Father concedes that he did not provide the juvenile court with maternal aunt’s
address, but argues that the juvenile court erred by failing to conduct its own investigation
into maternal aunt’s contact information after Father provided her name to the court as well
as possible avenues for obtaining the necessary information. In support, Father argues that
2
Father does not argue that he was denied the ability to cross-examine DCS’s witnesses.
3
Despite Father’s failure to provide the juvenile court with the necessary contact information, the
juvenile court granted Father’s request to subpoena DCS caseworker Meadows.
5
“Mother, DCS or the sheriff, through NCIC, know or can obtain [maternal aunt’s] address at
this Court’s discretion.” Appellant’s App. p. 34. Father argues that he was unable to obtain
maternal aunt’s address himself because “these people won’t let me out for a period of time,
out of prison so I could go hunt for it.” Tr. p. 69. Father, however, does not demonstrate that
his incarceration prevented him from contacting Mother or DCS to obtain maternal aunt’s
contact information or that he did not have access to research databases where he might have
been able to find maternal aunt’s contact information.4
During the fact-finding hearing, the juvenile court informed Father that the subpoena
was not issued because in light of Father’s failure to provide the court with maternal aunt’s
address, “there was no valid address” at which the court could serve the subpoena to maternal
aunt. Tr. p. 70. The juvenile court further informed Father that “it’s not DCS’s
responsibility or the Court’s responsibility to go out and find this person.” Tr. p. 66. Father
has provided no authority asserting that the juvenile court has such a responsibility, and we
find none. Thus, we agree with the juvenile court that it is not the court’s responsibility to
“go out and find” the person named in the subpoena.
Trial Rule 45(C) provides that service of a subpoena “shall be made by delivering a
copy thereof to” the person named in the subpoena. Service can be made on the individual or
the individual’s agent either in person or by mail. See Trial Rules 4.1, 4.16, and 5(B). Thus,
even if the juvenile court had issued the subpoena, here, in light of Father’s failure to provide
the juvenile court with maternal aunt’s address, the juvenile court would likely have been
4
The record reveals that Father’s incarceration did not prevent him from conducting research into
legal precedent which he believed supported his position at the fact-finding hearing.
6
unable to serve the subpoena upon maternal aunt. As such, we cannot say that the juvenile
court erroneously denied Father’s request to issue a subpoena to maternal aunt.
B. Continuance of the Fact-finding Hearing
Father also argues that the juvenile court erred in denying his request for a
continuance of the fact-finding hearing. Father argues that a continuance was necessary to
allow Father the opportunity to secure maternal aunt’s testimony regarding whether she
would be willing to accept custody of J.C. Indiana Trial Rule 53.5 provides that a hearing
may be continued at the discretion of the court upon a showing of good caused by affidavit or
other evidence. The granting or denial of a continuance is clearly within the discretion of the
trial court. Hallberg v. Hendricks Cnty. Office of Family & Children, 662 N.E.2d 639, 646
(Ind. Ct. App. 1996). Denial of the motion is an abuse of discretion only if the movant
demonstrates good cause for granting the motion. Id. We conclude that Father has failed to
do so.
Father argues that the juvenile court abused its discretion in denying his request for a
continuance because he successfully demonstrated good cause for said continuance. In
support, Father claims that maternal aunt’s testimony relating to her potential willingness to
accept custody of V.C. was essential to his argument that no CHINS petition should have
been filed because DCS had “set up a plan in the prior CHINS case that, if the [M]other’s
mental health deteriorated, [V.C.] would be placed with his aunt.” Appellant’s Br. p. 9.
Father also claims that nothing in the record suggests that the continuance would cause any
undue delay or hardship.
7
Despite Father’s claim to the contrary, we agree with DCS’s claim that maternal
aunt’s testimony was not essential because Father misconstrues the evidence relating to the
prior case plan. Father called former case manager Kirstin Meadows as a witness during the
fact-finding hearing for the purpose of establishing that a safety plan was in place to grant
maternal aunt custody of V.C. if Mother’s mental health deteriorated. Meadows was the case
manager assigned to Mother’s prior CHINS case and was most familiar with the safety plan
put in place at the conclusion of the prior CHINS case. While testifying, Meadows clarified
that maternal aunt had not been approved to take custody of V.C. for long periods of time,
but rather had only been approved to provide short-term temporary care for V.C., essentially
babysitting, if Mother’s mental state necessitated a short break from the children. In
addition, with respect to placement, DCS agreed to stipulate that maternal aunt would be
willing to be considered as a relative placement for V.C. despite her failure to respond to
DCS’s inquires as to the same, and, if necessary, indicated a willingness to investigate
whether maternal aunt would be a suitable placement for V.C.
In light of Meadow’s testimony refuting Father’s claim that no CHINS determination
was necessary because maternal aunt had been approved to accept custody of V.C., as well as
DCS’s stipulation to Father’s desired testimony that maternal aunt would be willing to be
considered as a relative placement for V.C., we conclude that Father has failed to
demonstrate good cause for granting his request for a continuance. Hallberg, 662 N.E.2d at
646. As such, we conclude that the juvenile court acted within its discretion in denying
Father’s request for a continuance.
8
Having concluded that the trial court did not err in failing to issue the requested
subpoena to maternal aunt after Father failed to provide the juvenile court with maternal
aunt’s address, and that the juvenile court acted within its discretion in denying Father’s
request for a continuance, we further conclude that the juvenile court did not violate Father’s
procedural due process rights as set forth in Indiana Code section 31-32-2-3(b).
II. Whether a CHINS Determination was Necessary
Father also contends that the juvenile court erroneously determined that V.C. is a
CHINS. Specifically, Father contends that no CHINS determination was necessary because a
suitable relative placement was available. Father’s entire argument, however, is based on the
false premise that maternal aunt had previously been approved to take custody of V.C. if
Mother’s mental state deteriorated. Again, Meadows testified that despite Father’s claim to
the contrary, maternal aunt had not been approved to take custody of V.C. for long periods of
time, but rather had only been approved to provide short-term temporary care for V.C., i.e.
that maternal aunt had been approved to babysit for V.C. Because the evidence demonstrates
that there was no approved suitable relative placement available to take custody of V.C. at
the time when Mother contacted the Lafayette Police Department and informed DCS that she
was unable to provide suitable care for V.C., and that Father was incarcerated in the DOC
until at least 2016, we cannot conclude that a CHINS determination was unnecessary.5 See
5
We note that Father does not challenge the sufficiency of the evidence supporting the juvenile
court’s determination that V.C. is a CHINS, but rather merely asserts that no CHINS determination was
necessary. Thus, having concluded that in light of the circumstances, a CHINS determination was indeed
necessary because there was no approved suitable relative placement available at the time that DCS again
became involved with V.C., we need not review the sufficiency of the evidence supporting the juvenile court’s
determination that V.C. was a CHINS.
9
In re T.S., 881 N.E.2d 1110, 1114 (providing that the trial court had no option but to declare
child a CHINS where there was no evidence for finding that grandmother would be a viable
placement alternative).
The judgment of the juvenile court is affirmed.
VAIDIK, J., and CRONE, J., concur.
10