In re the Termination of the Parent-Child Relationship of E.R. (minor child) and J.R. (father) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 30 2016, 9:30 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the September 30, 2016
Parent-Child Relationship of Court of Appeals Case No.
E.R. (minor child) 54A01-1604-JT-926
and Appeal from the Montgomery
Circuit Court
J.R. (father),
The Honorable Harry A. Siamas,
Appellant-Respondent, Judge
v. Trial Court Cause Nos.
54C01-1510-JT-258
The Indiana Department of
Child Services,
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] J.R. (“Father”) appeals the involuntary termination of the parent-child
relationship with his son, E.R.1 On appeal, Father does not challenge any of
the trial court’s findings or conclusions supporting its order to involuntarily
terminate his parent-child relationship with E.R. Instead, Father—who had
notice of the termination hearing, appeared telephonically for the hearing, and
was represented by counsel throughout the hearing—argues that the trial court
abused its discretion by denying his oral request for a continuance of the
termination hearing made on the day of the hearing. Because Father did not
show any good cause for the continuance or show that he would be prejudiced,
we conclude that the trial court did not abuse its discretion by denying the oral
request for a continuance and affirm the trial court’s judgment.
[2] We affirm.
Issue
Whether the trial court abused its discretion by denying Father’s
oral request for a continuance made on the day of the termination
hearing.
1
E.R.’s mother, P.F., consented to the voluntary termination of her parental rights; thus, she is not involved
in this appeal.
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Facts
[3] When E.R. was born in December 2013, Father signed an affidavit of paternity.
A month later, Father moved out of Indiana and apparently did not have
regular visitation with E.R. or pay child support.
[4] In March 2014, Mother was incarcerated and appointed E.R.’s maternal
grandmother (“Maternal Grandmother”) to be his temporary guardian. The
following month, in April 2014, the Indiana Department of Child Services
(“DCS”) removed E.R. from Maternal Grandmother’s home after she was
arrested on a warrant.2 Thereafter, DCS filed a petition alleging that E.R. was a
child in need of services (“CHINS”). During the initial hearing, Father waived
his right to appointed counsel. Following a fact-finding hearing, the trial court
determined that E.R. was a CHINS. The trial court ordered Father to, among
other things, have a parenting assessment and supervised visitation with E.R.
Father did not keep in contact with DCS, did not participate in services, and
had only a few supervised visits with E.R.
[5] In October 2015, DCS filed a petition to terminate Father’s parental rights to
E.R. DCS initially had trouble serving Father with the petition because he had
failed to provide an updated address; however, after hiring an investigator to
locate him, DCS was eventually able to serve him with the petition. Thereafter,
on January 19, 2016, the trial court held an initial hearing at which Father
appeared telephonically. The trial court offered and then appointed counsel for
2
Another child was also removed from the home, but that child is not the child of Father.
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Father. The trial court took Father’s address, which was in Kentucky, and
informed Father that his appointed attorney would contact him. The trial court
instructed Father that he would “need to take it upon [him]self to contact [the
attorney] when [he] g[o]t that so [he] c[ould] discuss this” matter. (Tr. 8). The
trial court also scheduled the termination hearing for April 14, 2016 at 1:00
p.m., and Father responded, “That sounds great.” (Tr. 11). The trial court
again informed Father to contact his public defender to discuss the case with
him.3
[6] On April 14, 2016, the trial court held the termination hearing. At the time of
the hearing, E.R. was a little over two years old. Father appeared
telephonically at the hearing and was represented by counsel. At the beginning
of the hearing, the trial court noted that Father “was afforded the opportunity
prior to the hearing to speak with [his counsel] by telephone.” (Tr. 14).
Thereafter, Father’s counsel asked for Father to be sworn in so that he could
ask Father some preliminary questions. During questioning, Father stated that
he had moved to Evansville, Indiana and confirmed that he had received a
letter from counsel around January 26, 2016. Father, however, stated that his
“soon to be ex-wife” had shredded the letter, leaving him with no contact
information for his attorney. (Tr. 16). Father also stated that she had kicked
him out of the house and that he had been “pretty much homeless for three
months.” (Tr. 17). Father’s counsel then made an oral motion to continue the
3
During this initial hearing, Father told the trial court that, although he had signed the affidavit of paternity
at E.R.’s birth, he did not know if E.R. was his child. When Father requested to have a paternity test, the
trial court instructed him to consult with his appointed attorney.
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hearing. DCS objected to the continuance, noting Father’s prior notice of the
hearing and his lack of involvement and contact with E.R. and DCS. The trial
court denied Father’s oral request to continue the hearing, stating, in relevant
part:
The court finds the matter was set for initial hearing on January
nineteenth, two thousand sixteen. [Father] appeared and was
given [by] this court [the] date of April fourteenth of two
thousand sixteen at one p.m. . . . [Father] admits that he received
a letter from [his appointed counsel] and contact information
from [counsel]. He states at some point thereafter it was
shredded. However, he apparently did not contact [his appointed
counsel]. [Father] had the telephone number certainly of this
court. He could have contacted the court to ask who his public
defender was if he had forgotten or didn’t have that information.
He did not do that. The matter’s been set for this hearing for
almost ninety days and [Father]’s personal circumstances do not
persuade the court that a continuance should be granted. He’s
known about the hearing for ninety days. The court does not
find good cause to continue the matter and we will proceed.
(Tr. 18).
[7] The trial court then had DCS present its witnesses, and Father’s counsel cross-
examined them. Prior to Father’s presentation of witnesses, the trial court gave
Father another opportunity to speak privately with his counsel by phone.
Thereafter, the trial court entered a detailed order involuntarily terminating
Father’s parental rights to E.R. Father now appeals.
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Decision
[8] On appeal, Father does not challenge any of the trial court’s findings or
conclusions supporting its order to involuntary terminate his parent-child
relationship with E.R. Instead, he presents a single issue for our review,
contending that the trial court abused its discretion by denying his oral request
for a continuance.
[9] Pursuant to our Indiana Trial Rules, “[u]pon [a] motion” to continue a trial
filed by a party, a trial court has “discretion” to “postpone[] or continue[]” the
trial. Ind. Trial Rule 53.5. “[A] trial court shall grant a continuance upon
motion and ‘a showing of good cause established by affidavit or other
evidence.’” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009) (quoting Ind.
Trial Rule 53.5) (emphasis added). “Generally speaking, a trial court’s decision
to grant or deny a motion to continue is subject to abuse of discretion review.”
In re K.W., 12 N.E.3d 241, 243-44 (Ind. 2014) (citing Rowlett v. Vanderburgh
Cnty. Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans.
denied). “‘An abuse of discretion may be found in the denial of a motion for a
continuance when the moving party has shown good cause for granting the
motion,’ but ‘no abuse of discretion will be found when the moving party has
not demonstrated that he or she was prejudiced by the denial.’” Id. (quoting
Rowlett, 841 N.E.2d at 619).
[10] “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
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circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request was denied.” J.P. v. G. M., 14 N.E.3d 786,
790 (Ind. Ct. App. 2014) (quoting Ungar v. Sarafite, 376 U.S. 575, 589-590
(1964), reh’g denied). Continuances to allow time for additional preparation are
generally disfavored and require a showing of “good cause” and how “it is in
the interests of justice.” Williams v. State, 681 N.E.2d 195, 202 (Ind. 1997). See
also Clodfelder v. Walker, 125 N.E.2d 799, 800 (Ind. 1955) (explaining that a
motion for continuance should be made at the earliest practicable time after
knowledge of the necessity for a continuance). Furthermore, “[a] continuance
requested for the first time on the morning of trial is not favored.” Lewis v.
State, 512 N.E.2d 1092, 1094 (Ind. 1987).
[11] Father argues that the trial court’s denial of his oral continuance request was an
abuse of discretion despite the facts that he had notice of the hearing, was able
to participate in the hearing telephonically, and was represented by counsel
throughout the hearing. He does not contend that he had, or that he presented,
any “good cause” for the continuance. Nor does he show how he was
prejudiced by the denial.
[12] We conclude, however, that the trial court’s denial of Father’s continuance
request was not an abuse of discretion. Father requested the continuance by an
oral motion on the day of trial and not by a motion supported by a “showing of
good cause” as required by Trial Rule 53.5. Indeed, the trial court specifically
determined that Father had failed to show good cause. Additionally, Father
did not assert that he would be prejudiced. Instead, he indicated that he was
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aware of the hearing date and had received his appointed counsel’s letter.
When denying Father’s continuance request, the trial court noted that Father
had received notice of the termination hearing ninety days prior to the hearing
and that he had received his attorney’s contact information but had failed to
contact counsel. Furthermore, the trial court gave Father the opportunity to
consult with his counsel by telephone prior to the hearing and again prior to
presenting his case-in-chief. Given the deference to the trial court’s decision on
this matter, we conclude that the trial court did not abuse its discretion by
denying Father’s counsel’s oral request for a continuance made on the day of
the termination hearing. See, e.g., Gunashekar, 915 N.E.2d at 956 (affirming the
trial court’s denial of a motion to continue a bench trial).
[13] Affirmed.
Bradford, J., and Altice, J., concur.
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