in-re-the-matter-of-the-termination-of-the-parent-child-relationship-of ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Feb 20 2014, 6:59 am
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:
TERI A. FLORY GREGORY F. ZOELLER
Flory and Smith Attorney General of Indiana
Lafayette, Indiana
ROBERT J. HENKE
DAVID E. COREY
Deputies Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP )
OF L.T.W.B., Minor Child, and S.A.B., Mother, )
and H.L.B., Father, )
)
H.L.B., Father, )
)
Appellant-Respondent, )
)
vs. ) No. 79A02-1307-JT-669
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Faith A. Graham, Judge
The Honorable Crystal A. Sanders, Magistrate
Cause No. 79D03-1303-JT-24
February 20, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
H.L.B. (Father) appeals the involuntary termination of his parental rights to L.T.W.B.
(Child). He argues the trial court abused its discretion when it denied his motion to continue.
We affirm.
FACTS AND PROCEDURAL HISTORY1
Child was born on April 27, 2012, to S.A.B.2 (Mother) and Father. The Department of
Child Services (DCS) became involved with the family because Mother left the hospital
without the Child after Child’s birth and her whereabouts became unknown. Father visited
Child in the hospital, and was advised DCS was investigating Mother’s whereabouts. Father
submitted to a drug test at that time, and it came back positive for THC, a chemical found in
marijuana. On May 2, DCS filed a petition to declare Child a Child in Need of Services
(CHINS) based on Mother’s abandonment of Child, Father’s positive drug screen, the
presence of cocaine in Child’s meconium at birth, Mother’s lack of prenatal care, and
Mother’s use of drugs three days prior to Child’s birth.
On June 15, the juvenile court adjudicated Child a CHINS and ordered Father to
refrain from the use of illegal drugs and alcohol, attend all court hearings, obtain and
maintain safe housing, obtain and maintain a legal and stable source of income, obey the law,
1
The record on appeal in this case was prepared pursuant to the Indiana Supreme Court’s “Order Establishing
the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record on Appeal” issued
on September 18, 2012, and effective on July 1, 2012. See Ind. Supreme Court Case No. 94S00-1209-MS-
522. Therefore, the citations to the transcript will be to the “A/V Rec.” We acknowledge the ongoing
cooperation of the Honorable Faith A. Graham of the Tippecanoe Superior Court and parties’ counsel in the
execution of this pilot project.
2
Mother does not participate in this appeal, and we therefore provide facts regarding Mother only as necessary
to address Father’s arguments.
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participate in substance abuse assessments and follow all recommendations, participate in
mental health assessments and follow all recommendations, participate in parenting
assessments and follow all recommendations, submit to random drug screens, participate in
visitation with Child, and participate in home-based therapy. Father completed the required
assessments, but he did not complete any of the services recommended based on those
assessments. He participated in visitation with Child during May 2012, but he did not see
Child thereafter. Father was arrested once and convicted twice during the course of the
proceedings, he tested positive for cocaine, admitted to using cocaine, and admitted to
abusing alcohol.
On March 6, 2013, DCS filed a petition to involuntarily terminate Father’s parental
rights. The juvenile court held a hearing the same day and appointed counsel for Father. On
May 6, Father filed a motion to continue the fact-finding hearing scheduled for May 28 based
on a conflict on his counsel’s calendar. In that same motion, Father acknowledged the court
had discretion to appoint him different counsel in lieu of continuing the case. On May 8, the
juvenile court denied Father’s motion to continue and appointed him new counsel. Father did
not request another continuance, and his counsel participated in the May 28 hearing. On July
2, the juvenile court issued its order involuntarily terminating Father’s parental rights.
DISCUSSION AND DECISION
“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. The right to raise one’s own child should
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not be terminated solely because there is a better home available for the child, but parental
rights may be terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. In re K.S., 750 N.E.2d 832, 836-37 (Ind. Ct. App. 2001).
Father alleges the trial court abused its discretion when it denied his May 6, 2013,
motion to continue. The decision to grant or deny a continuance rests within the sound
discretion of the juvenile court. Rowlett v. Vanderburgh Cnty. 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 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.Failure to raise an issue before the juvenile court constitutes waiver of that issue on
appeal. Runkel v. Miami County DCS, 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans.
denied. “In order to properly preserve an issue on appeal, a party must, at a minimum, ‘show
that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before
seeking an opinion on appeal.’” Id. Waiver based on failure to raise an issue before the
lower court applies to issues which may have constitutional implications. Hite v.
Vanderburgh Cnty. OFC, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006).
Father asked for a continuance based on counsel’s unavailability on the hearing date,
but his motion also asserted: “In the alternative, as this is an appointed case, the Court has
the discretion to appoint a different attorney to handle this matter.” (App. at 15.) The
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juvenile court denied the motion to continue and appointed new counsel. Between May 8
and the hearing date, May 28, Father did not request another continuance. Nor did he request
a continuance at the hearing. See A/V Rec. 8:41:00-:10 (court asked if there were any
preliminary matters and Father indicated there were not). Therefore, the issue is waived
because Father did not present it to the juvenile court. Waiver notwithstanding, there was no
abuse of discretion.
Father argues the juvenile court abused its discretion when it denied his May 6, 2013,
motion to continue because his new counsel, who was appointed at his request and as part of
the juvenile court’s May 8 order, did not have ample time to “become familiar with all
aspects of a year-long case, which included multiple reports, orders, and filings.” (Br. of
Appellant at 12.) However, Father does not indicate how he was prejudiced by counsel’s
short time to prepare for the fact-finding hearing. There was overwhelming evidence
supporting the involuntary termination of Father’s rights - he had failed multiple drug
screens, refused to participate in services and visitation, and been arrested twice during the
proceedings. Additionally, Father does not allege there were witnesses that should have been
called on his behalf or testimony that should have been presented. Father’s counsel cross-
examined all witnesses during the fact-finding hearing and offered a closing statement giving
reasons why termination was not appropriate. Therefore, we cannot say the juvenile court
abused its discretion when it denied his motion to continue. See Fink v. State, 469 N.E.2d
466, 470 (Ind. Ct. App. 1984) (no abuse of discretion when Fink showed no prejudice
resulting from denial of his request for a continuance in order that a new attorney might
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prepare his defense), on reh’g, 471 N.E.2d 1161 (Ind. Ct. App. 1984).3
Affirmed.
KIRSCH, J., and BRADFORD, J., concur.
3
As Father has not demonstrated he was prejudiced by the denial of his motion to continue, he has also not
demonstrated his due process rights were violated.
6