MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 08 2017, 8:03 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frederick A. Turner Donald W. Francis, Jr.
Bloomington, Indiana Michelle B. Domer
Francis & Berry Domer
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.W., March 8, 2017
Appellant, Court of Appeals Case No.
53A04-1609-AD-2165
v. Appeal from the Monroe Circuit
Court
T.M., The Honorable Stephen R. Galvin,
Appellee. Judge
Trial Court Cause No.
53C07-1407-AD-64
May, Judge.
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[1] J.W. (“Father”) appeals the trial court’s order that declared Father’s consent
was not required for the adoption of Ja.M. (“Child”) by T.M. (“Stepfather”).
Father argues: (1) the trial court abused its discretion when it denied his eighth
motion to continue; and (2) the trial court erred when it determined his consent
was not required for Stepfather’s adoption of Child. We affirm.
Facts and Procedural History
[2] Child was born to Je.M. (“Mother”) and Father on March 12, 2006. Mother
and Father were not married at the time of Child’s birth. Father visited with
Child “about two (2) weeks after she born up until about two (2) months.” (Tr.
at 87.) Father established his paternity in 2009.1 Mother married Stepfather in
2012.
[3] On July 16, 2014, Stepfather filed a petition to adopt Child. Father was notified
of the petition and filed a motion to contest the adoption on August 5, 2014.
The court scheduled a hearing for September 16, 2014, to appoint a Guardian
ad litem (“GAL”) and advise Father of his rights. Father requested a
continuance of the September 16 hearing because he “was just release[d] from
D.O.C. [Department of Correction] on May 19, 2014 [and] will need to talk[] to
a counsel to hire one to represent him.” (App. Vol. 2 at 39.) The trial court
1
The paternity action was still pending at the time of the adoption proceedings, because Father’s visitation
and child support had not yet been determined.
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denied his request noting “the purpose of the hearing is to advise [Father] of his
rights.” (Id. at 4.)
[4] Father appeared at the hearing on September 16, requested appointment of
counsel, and was appointed counsel soon thereafter. On November 6, 2014, the
court held a pretrial hearing. Father was not present because “he had to take
his father to the VA for some kin[d] of an emergency something.” (Tr. at 10.)
The court set a hearing for December 16, 2014.
[5] On December 12, 2014, Father filed a motion to continue the December 16
hearing because Father wanted to procure the attendance of his past mental
health counselor to testify on his behalf. The trial court granted that motion,
and reset the hearing for January 29, 2015. On December 30, 2014, Father’s
counsel filed a motion to withdraw because Father “believe[d] that [Counsel]
[had] a conflict of interest because [Counsel was] a prosecuting attorney over
twenty (20) years ago from approximately 1987 to 1992[.]” (Id. at 18.) The
trial court denied counsel’s motion to withdraw.
[6] On January 27, 2015, Father filed another motion to continue, asking for an
additional thirty days to retain a new attorney because he believed his counsel’s
alleged conflict of interest was “negatively affecting counsel’s ability to
represent natural father and to prepare for a final hearing [and] [c]ounsel is not
prepared for said final hearing.” (App. Vol. 2 at 57.) On January 29, the court
held a hearing on the motion to continue, as well as Father’s petition for change
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of judge2 and Father’s counsel’s second motion to withdraw. Father was
present for this hearing. The court granted Father’s counsel’s motion to
withdraw and Father’s motion to continue. The court appointed new counsel
for Father. The court denied Father’s petition for change of judge on February
3, 2015.
[7] The court scheduled a hearing for May 22, 2015. On May 19, 2015, Father
filed a motion to continue, requesting additional time to confer with his mental
health counselor. The court granted Father’s request and rescheduled the
hearing for July 1, 2015. On June 12, Father’s counsel requested additional
funds from the court to pay for the procurement of evidence to present a
defense on Father’s behalf. On June 30, the court granted Father’s request for
additional funds and, on July 1, continued the final hearing to September 3,
2015.
[8] On August 28, 2015, Father filed a motion to continue with an attached letter
from his cardiologist, Dr. Peterson. The letter indicated Father was admitted
on August 11, 2015, “with rapid atrial fibrillation, decompensated heart failure
and an ejection fraction of 25%.” (Id. at 66.) Dr. Peterson’s letter stated
Father’s “medical status is not stabilized well enough to allow him to withstand
excessive emotional interrogation.” (Id.) On September 1, the court held a
2
Father requested a change of judge because the judge in the case “was in the prosecuting attorney’s office at
the same time as Maryanne Pelic and that Ms. Pelic was somehow related to, or is not somehow but is the
mother of this child’s cousin’s wife.” (Tr. at 27.)
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hearing on Father’s motion to continue and Dr. Peterson appeared
telephonically. Dr. Peterson testified “probably six (6) to eight (8) weeks would
be a reasonable time frame[,]” (Tr. at 63), to continue the matter so Father’s
heart could “get back in rhythm and his heart function has a chance to
normalize.” (Id. at 66.) The court continued the matter to November 19, 2015.
[9] On November 17, 2015, Father filed a motion to continue with a letter attached
from a different cardiologist, Dr. Heumann. Dr. Heumann’s letter indicated
Father was scheduled for an “Atrial Fibrillation ablation procedure in the near
future [and] should not engage in any stress promoting activities at this time
related to his serious cardiovascular disease.” (App. Vol. 2 at 69.) On
November 19, the court held a hearing on Father’s motion to continue and
granted Father’s motion, setting the matter for a pre-trial conference on January
28, 2016.
[10] At the pre-trial conference on January 28, Father’s counsel indicated there had
been a delay in Father’s treatment and “he’s supposed to have the last thing
probably mid-February and at that time then they’ll be able to determine um,
whether he needs surgery or not.” (Tr. at 75.) The court granted Father’s
motion to continue and reset the matter for trial on April 12, 2016. The court
noted:
[I]f he, [Father,] does not believe he is going to be physically able
to participate um, he needs to inform the court uh, as soon as
possible so that we can set a hearing and take medical testimony
and I would have to have, that testimony would have to be in the
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nature of some assurances that he could be ready to participate
within a reasonable period of time.
(Id. at 78.) The matter was later reset due to a conflict on the court’s calendar
to April 15, 2016. At a pre-trial conference on April 11, 2016, Father orally
requested a continuance. The trial court granted Father’s request and set the
matter for trial on July 21, 2016.
[11] On July 19, 2016, Father filed a motion to continue because “he was too
stressed out to assist deal with [sic] the case and was checking himself into a
hospital or facility.” (App. Vol. 2 at 78.) The court denied Father’s motion to
continue the same day. On July 20, Father filed another motion to continue
with a letter from Dr. Heumann attached. Dr. Heumann wrote, “[Father] will
have exacerbations of [Congestive Heart Failure and Atrial Fibrillation] which
may cause shortness of breath, fatigue, and edema. These episodes will require
rest and treatment to control symptoms.” (Id. at 81.)
[12] The court held the July 21 hearing as scheduled and denied Father’s motion to
continue saying:
I am going to note the following, that uh, there have been seven
(7) continuances granted in this matter. The court first granted a
continuance due to alleged uh, [Father’s] alleged medical
condition um, and it is the court, certainly the court’s preference
that [Father] be able to appear and to actively participate in this
case. Um, given that this matter has been repeatedly continued I
think that the court has given [Father] every opportunity and
would very much, I very much wish that he was here today uh,
to address this. I do note however that after the repeated
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continuances have been granted uh, on January the 28th the
court specifically noted in balancing the interest in this cause that
[Father] if he is alleging that he is not capable of participating in
the upcoming hearing due to his medical condition must provide
additional medical evidence that his condition persists. In other
words that he continues to suffer from the, a condition which
precludes him from participating in the hearing and that he’s
unavailable and that he is likely to be capable of participating in
these proceedings within a reasonable time frame. Um, the
reason for this is obvious. Um, [Father], even if he is unable to
due to a physical illness to participate if there is no uh, reasonable
time from for him uh, for this condition to be alleviated uh, then
there’s no way for the court to determine uh, when he might be
able to participate. In those circumstances perhaps the best that
can be done is that [Father’s counsel] represent him at these
proceedings uh, and that is the rationale behind the court’s order.
I do note that the information provided from Doctor Heumann
meets neither of these tests. Doctor Heumann does state that he
continues to suffer from he has obvious heart condition uh, and
that it may require, episodes may require rest and treatment to
control symptoms. There is no statement that he is not capable
of participating in these proceedings number one. But even if the
court were to conclude that that were the case there is no attempt
what so ever to provide information on when if ever his medical
condition could be resolved. Under the circumstances after two
(2) full years and seven (7) continuances the court has given him
every opportunity to participate in these proceedings or to find,
put himself in a position if he were unable to physically
participate uh, to uh, for his condition to be resolved or for him
to demonstrate within a reasonable time period that that
condition would be resolved and that he would be able to
participate. He has done neither.
(Tr. at 84-6) (errors in original). The hearing proceeded without Father, though
his counsel was present.
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[13] On August 16, 2016, the trial court issued an order that concluded Father’s
consent to Stepfather’s adoption of Child was not required and granted
Stepfather’s adoption petition.
Discussion and Decision
Motion to Continue
[14] Father first challenges the court’s denial of his motion for continuance. The
decision to grant or deny a continuance rests within the sound discretion of the
juvenile court. Rowlett v. Vanderburgh Cty. Office of Family & Children, 841
N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. We will reverse the court’s
decision only for an abuse of that discretion. Id. An abuse of discretion occurs
when the party requesting the continuance has shown good cause for granting
the motion, but the juvenile court denies it. Id. No abuse of discretion will be
found when the moving party is not prejudiced by the denial of its motion. Id.
We also “consider whether the record demonstrates dilatory tactics on the part
of the movant designed to delay coming to trial.” J.P. v. G.M., 14 N.E.3d 786,
790 (Ind. Ct. App. 2014).
[15] Father frames his appeal of the trial court’s denial of his motion to continue as a
violation of his due process rights. “Due process affords parents the
opportunity to be heard at a meaningful time and in a meaningful manner.” In
re C.G., 954 N.E.2d 910, 917 (Ind. 2011). The United States Supreme Court
explained the nexus between due process rights and motions to continue in
Ungar v. Sarafite:
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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.
376 U.S. 575, 589-90 (1964), reh’g denied.
[16] Here, Father’s motion to continue was denied after the trial court granted at
least seven of Father’s motions to continue for various reasons over a two-year
period. Most of these motions were made two to three days prior to a
scheduled hearing, with reasons including a request to procure the attendance
of certain witnesses, a request for more time to engage in discovery, a change in
counsel, and the inability of Father to participate in the hearing due to his
health problems. The motions to continue resulted in a two-year delay in the
adoption process of Child, who has known only Stepfather as her father,
because Father visited her only when she was an infant. See Baker v. Marion Cty.
Office of Family & Children, 810 N.E.2d 1035, 1040 (Ind. 2004) (“it is in the
child’s best interest and overall well being to limit the potential for years of
litigation and instability”).
[17] Further, Father’s counsel was present at the hearing, as were witnesses on his
behalf. His counsel had an opportunity to cross-examine all of Stepfather’s
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witnesses, present testimony in support of Father from Father’s mental health
counselor, Dr. Fink, and to argue on Father’s behalf. Father was not
prejudiced by the trial court’s denial of his motion to continue and thus the trial
court did not abuse its discretion. See In re E.E., 853 N.E.2d 1037, 1044 (Ind.
Ct. App. 2006) (father was not prejudiced when trial court denied his motion to
continue and proceeded with hearing without father because father’s counsel
was present and called witnesses, cross-examined witnesses, and argued on
father’s behalf), trans. denied.
Sufficiency of the Evidence
[18] Father next challenges the court’s determination that his consent was not
required for Stepfather to adopt. We will not disturb a decision in an adoption
proceeding unless the evidence leads to but one conclusion and the trial judge
reached an opposite conclusion. In re Adoption of M.A.S., 815 N.E.2d 216, 218
(Ind. Ct. App. 2004). We will not reweigh the evidence. Id. Instead we
examine the evidence most favorable to the decision together with reasonable
inferences drawn therefrom to determine whether there is sufficient evidence to
sustain the decision. Id. The decision of the trial court is presumed correct, and
it is the appellant’s burden to overcome that presumption. Id.
[19] Generally, courts may not grant a petition for adoption without the consent of
the child’s biological parents. Ind. Code § 3l-19-9-l(a). There are, however,
exceptions to that general rule. Indiana Code section 31-19-9-8(a) provides, in
relevant part:
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(a) Consent to adoption, which may be required under section 1
of this chapter, is not required from any of the following:
*****
(2) A parent of a child in the custody of another person if
for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate
significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and
support of the child when able to do so as required
by law or judicial decree.
*****
(11) A parent if:
(A) a petitioner for adoption proves by clear and
convincing evidence that the parent is unfit to be a
parent; and
(B) the best interests of the child sought to be
adopted would be served if the court dispensed with
the parent’s consent.
Furthermore, subsection (a) is written in the disjunctive “such that the existence
of any one of the circumstances provides sufficient ground to dispense with
consent.” In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014).
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[20] Father argues Stepfather “has not established a lack of support when Father had
the ability to provide. He was attempting to establish the opportunity to
provide such support.” (Br. of Appellant at 19.) 3 Indiana law “imposes upon a
parent the duty to support his children. This duty exists apart from any court
order or statute.” Irvin v. Hood, 712 N.E.2d 1012, 1014 (Ind. Ct. App. 1999)
(internal citation omitted). Thus, Father does not need the court to help him
“establish the opportunity” to provide support for Child.
[21] Regarding Father’s ability and willingness to pay support, the trial court found
and concluded:
1. It is undisputed that [Father] has never provided any support
for [Child].
2. [Father] has often been incarcerated during [Child’s] life. This
does not relieve him of the duty to make a good-faith attempt to
support his child.
3. [Father] was clearly employed on October 28, 2006, at a
tanning salon when he engaged in Sexual Misconduct with a
Minor. He paid no child support while working at the tanning
salon.
3
Father also argues Stepfather did not prove Father was an unfit parent or that he did not communicate
significantly with Child. As the statute is written in the disjunctive, we need address only one of these
arguments.
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4. Dr. Fink testified that he has known [Father] since 2009 and
that [Father] is capable of working. Dr. Fink has seen [Father]
working in the last three months.
5. Clearly, [Father] has failed to provide support [Child] for a
period of one year when able to do so. Therefore, his consent to
the adoption of [Child] by [Stepfather] is not required.
(App. Vol. 2 at 88.) Father’s argument, “there is no evidence of sufficient
income to pay support for any one year period,” (Br. of Appellant at 17), is an
invitation for our court to reweigh the evidence, which we cannot do. See In re
Adoption of M.A.S., 815 N.E.2d at 218 (appellate court cannot reweigh evidence
or judge credibility of witnesses).
Father cannot escape his obligation to support Child through his seemingly
continual incarceration. See In re Adoption of T.L., 4 N.E.3d 658, 663 (Ind. 2014)
(“[W]e cannot imagine that the legislatures intended for incarcerated parents to
be granted a full reprieve from their child support obligations while their
children are minors. . . . Moreover, adopting such a position would cut against
the common law tradition that has long held parents responsible for the support
of their offspring.”) (quoting Lambert v. Lambert, 861 N.E.2d 1176, 1179 (Ind.
2007)). Further, Father was not incarcerated for the two-year period he
prolonged these proceedings. At his advisement of rights hearing on September
16, 2014, Father testified he was “self employed . . . working for [his] father . . .
painting and, and doing a little remodel work.” (Tr. at 5.) Father indicated he
was being paid $300.00 a week at that time. Dr. Fink also testified he saw
Father working at a restaurant three months prior to the final hearing in 2016.
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Father did not pay support during this two-year period despite his ability to do
so. Thus, the evidence was sufficient to prove Father’s consent to Child’s
adoption was not required due to his lack of support of Child for a one-year
period. See In re Adoption of B.R., 877 N.E.2d 217, 218 (Ind. Ct. App. 2007)
(father’s consent to adopt child not required when trial court found father “paid
no support despite having the ability to do so”).
Conclusion
[22] The trial court did not abuse its discretion or violate Father’s right to due
process when it denied Father’s motion to continue. Further, Stepfather
presented sufficient evidence Father’s consent to Child’s adoption was not
required because Father had the ability to pay support and did not for a one-
year period. As Father has not demonstrated error in the court’s grant of
Stepfather’s adoption of Child, we affirm.
[23] Affirmed.
Najam, J., and Bailey, J., concur.
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