In the Matter of the Termination of the Parent-Child Relationship of: B.B. and M.B. v. The Ind. Dept. of Child Services ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Dec 11 2014, 9:55 am
regarded as precedent or cited before
any 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:
JILL M. ACKLIN GREGORY F. ZOELLER
Westfield, Indiana Attorney General of Indiana
ROBERT J. HENKE
Deputy Attorney General
Indianapolis, Indiana
DAVID DICKMEYER
Certified Legal Intern
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
)
B.B., Minor Child, )
)
and )
)
M.B., Mother, )
)
Appellant-Respondent, )
)
vs. ) No. 49A04-1404-JT-149
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn Moores, Judge
The Honorable Larry Bradley, Magistrate
Cause No. 49D09-1309-JT-16219
December 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
M.B. (Mother) appeals the involuntary termination of her parental rights to B.B.
(Child). Mother1 argues the trial court abused its discretion when it denied her motion to
continue. We affirm.
FACTS AND PROCEDURAL HISTORY
Child was born to Mother on October 31, 2011. On August 29, 2012, the Department
of Child Services (DCS) removed Child from Mother’s care because Mother was arrested
and there was no one to care for Child. On October 26, Mother admitted Child was a Child
in Need of Services (CHINS) because Mother was a minor, lacked financial means to
provide for Child’s needs, was incarcerated, and tested positive for an illegal substance. On
November 16, the trial court adjudicated Child as a CHINS and ordered Mother to participate
in services such as home based therapy, substance abuse treatment, and assistance to obtain
stable employment and housing.
On February 15, 2013, the trial court held a status hearing. It found Mother had not
participated in services, and, at Mother’s request, ordered Mother to complete in-patient drug
treatment. The trial court held three more status hearings but Mother did not appear at them.
She was incarcerated throughout the proceedings, first in Marion County and then in Shelby
County.
On September 9, 2013, DCS filed for termination of the parent-child relationship. In
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Child’s father is unknown.
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anticipation of the February 27, 2014, evidentiary hearing on the petition to terminate,
Mother requested transport from the Marion County jail to the Marion County courthouse.
The trial court granted that request, but a week before the hearing Mother was relocated to
Shelby County. On February 20, Mother requested transport from the Shelby County jail,
which the trial court denied. The trial court then stated Mother could appear at the February
27 hearing either via videoconference or telephone.
On February 27, the trial court held an evidentiary hearing and Mother appeared by
telephone. She requested a continuance until she could appear in person, and the trial court
denied her request. On March 6, the trial court ordered the termination of Mother’s parental
rights.
DISCUSSION AND DECISION
We review termination of parental rights with great deference. In re K.S., 750 N.E.2d
832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge credibility of
witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we
consider only the evidence and reasonable inferences most favorable to the judgment. Id. In
deference to the trial court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent-child relationship only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S. 1161 (2002).
The decision to grant or deny a continuance rests within the sound discretion of the
juvenile court. Rowlett v. Vanderburgh Cnty. Office of Family and Children, 841 N.E.2d
615, 619 (Ind. Ct. App. 2006), trans. denied. We will reverse only for an abuse of that
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discretion. Id. An abuse of discretion occurs when the party requesting the continuance has
shown good cause for granting the motion and 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. Mother argues the trial court abused its discretion when it denied her motion to continue
because she could not be physically present for the termination hearing.
Although the “traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution,” In re M.B., 666
N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied, a parent does not have a constitutional
right to be physically present at a termination hearing. In re C.G., 954 N.E.2d 910, 921 (Ind.
2011). Whether to permit an incarcerated parent to attend a termination hearing is within the
sound discretion of the juvenile court. Id. at 922. In exercising that discretion,
the trial court judge should balance the following factors: (1) [t]he 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 affect [sic] 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.
Mother relies on In re K.W., in which our Indiana Supreme Court reversed the
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involuntary termination of the relationship between K.W. and his mother because the juvenile
court abused its discretion when it denied the mother’s request for a continuance because she
could not be transported from prison to the termination hearing. 12 N.E.3d 241, 249 (Ind.
2014). However, K.W. is distinguishable. In K.W., the mother was not permitted to appear
by telephone as was Mother in the case before us. In K.W., the mother’s release from prison
was imminent, whereas in the case before us, it was unclear when Mother would be released
because her pre-trial hearing was scheduled four weeks after the termination hearing.2
The trial court did not abuse its discretion when it denied Mother’s request for a
continuance. Accordingly, we affirm.
Affirmed.
BARNES, J., and PYLE, J., concur.
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K.W. also included an analysis of the factors set forth in In re C.G, 954 N.E.2d at 922-23. With regards to
those factors, we note Mother had failed to attend three prior hearings, and was not incarcerated at the time of
those hearings; her release date from her incarceration at the time of the hearing was unknown; the proceedings
were nearing the statutory 180-day time limit for a termination proceeding; Mother had counsel at the hearing,
and had been able to consult with counsel prior to the hearing; Mother was able to testify during the hearing;
and there was sufficient evidence to prove termination was proper, and Mother does not appeal any of the trial
court’s findings.
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