In the Matter of the Term. of the Parent-Child Relationship of J.E., and K.E. v. The Ind. Dept. of Child Services

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.

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 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.

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 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.

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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.

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[18] Affirmed.

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

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