In the Matter of the Term. of the Parent-Child Relationship of, M.W., (Minor Child) and, J.W., (Mother) v. The Ind. Dept. of Child Services ( 2015 )

MEMORANDUM
DECISION
Jun 04 2015, 10:15 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Erin L. Berger Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Miller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the June 4, 2015
Termination of the Parent- Court of Appeals Cause No.
Child Relationship of, 82A01-1410-JT-456
Appeal from the Vanderburgh Superior
M.W., (Minor Child) Court
Cause No. 82D01-1406-JT-66
and, The Honorable Brett J. Niemeier, Judge
The Honorable Renee Ferguson,
Magistrate
J.W., (Mother)
Appellant-Respondent,
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v.
The Indiana Department of
Child Services,
Appellee-Petitioner.
Barnes, Judge.
Case Summary
[1] J.W. (“Mother”) appeals the trial court’s termination of her parental rights to
M.W. We affirm.
Issue
[2] Mother raises one issue, which we restate as whether the trial court abused its
discretion by denying her motion to continue.
Facts
[3] M.W. was born in December 2012, and shortly after M.W.’s birth, the Indiana
Department of Child Services (“DCS”) filed a petition alleging that M.W. was a
child in need of services (“CHINS”) based on Mother’s erratic behavior,
Mother’s positive drug test, and Mother’s arrest on outstanding warrants.
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Mother had a pending CHINS case for another of her children, A.W. 1 In
January 2013, the trial court found that M.W. was a CHINS. In February
2013, the trial court entered a dispositional order that ordered Mother to
participate in services. Between February and June 2013, Mother failed to
make progress on the services and visited M.W. only one time. Beginning in
June 2013, Mother was incarcerated on various charges, including dealing in
methamphetamine, and received mental health treatment during her
incarceration.
[4] In June 2014, DCS filed a petition to terminate Mother’s parental rights to
M.W. At the July 29, 2014 pre-trial hearing, Mother requested a continuance
of the scheduled August 6, 2014 hearing on the termination petition. Mother
contended that she expected to be released from incarceration in October 2014,
that she had received extensive mental health treatment, and that she desired to
participate in services upon her release. The State objected to the continuance,
arguing that Mother had a considerable amount of time prior to her
incarceration to participate in services and failed to do so. The trial court
denied Mother’s motion for a continuance. Mother did not renew her motion
to continue at the August 6, 2014 hearing. After the hearing, the trial court
entered findings of fact and conclusions thereon granting the termination of
parental rights. Mother now appeals.
1
Mother’s parental rights to A.W. were terminated in November 2013. On appeal, we affirmed the
termination of parental rights. In re A.W., 82A05-1311-JT-581 (Ind. Ct. App. July 30, 2014).
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Analysis
[5] Mother argues that the trial court erred by denying her motion for a
continuance of the termination of parental rights hearing. 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). “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. at 244.
[6] In support of her argument, Mother relies on Rowlett v. Vanderburgh Cnty. Office
of Family & Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied.2 In
Rowlett, we concluded that the trial court abused its discretion by denying the
father’s motion to continue a hearing on the termination of his parental rights.
The father was set to be released from incarceration six weeks after the hearing,
and he had not had the opportunity to participate in services directed at
reunifying him with his children. During his incarceration, the father had
participated in numerous services and programs that would be helpful to him in
reaching his goal of reunification with his children. Also, the children had been
in the care and custody of their maternal grandmother since they were
determined to be CHINS nearly three years prior to the hearing, and the
2
Mother also relies on A.J. v. Marion County Office of Family & Children, 881 N.E.2d 706 (Ind. Ct. App. 2008),
trans. denied. However, A.J. did not involve a motion for continuance.
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children were to be adopted by their maternal grandmother. Thus, we noted
that the continuation of the dispositional hearing until sometime after the father
was released would have had little immediate effect upon the children. We
concluded that, under these circumstances, the trial court abused its discretion
by denying the father’s motion for continuance.
[7] This case, however, is distinguishable from Rowlett. Here, Mother was
incarcerated awaiting trial. At the pre-trial hearing, Mother’s attorney stated:
“She tells me that she has trial in October of this year, so just a couple of
months from where we are now. And expects that even if she is unsuccessful at
trial that her sentence will be time served. So she expects to be released from
incarceration in October of 2014.” Tr. p. 5. Unlike in Rowlett, where the father
was set to be released in six weeks, Mother’s release in October was speculative.
There was no guarantee that Mother’s trial would take place in October, and
there was no guarantee as to her sentence. Moreover, even if Mother was
released in October, Mother would still have to demonstrate over many months
her ability to maintain her mental health, avoid substance abuse, avoid
additional criminal arrests and convictions, and participate in services. More
importantly, in Rowlett, the father had not been able to participate in services
due to his incarceration. Here, Mother had the opportunity for several months
to participate in services and visit M.W. prior to her incarceration, but she
failed to do so.
[8] We acknowledge that Mother claims to have received mental health treatment
and claims that she is doing better. However, she presented no specifics of that
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treatment at the time of her motion to continue. Given these facts, we are
unwilling to keep M.W. on a shelf until Mother is capable of caring for her
properly. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989). The
trial court did not abuse its discretion by denying Mother’s motion to continue
because she has not shown good cause or that she was prejudiced by the denial.
Conclusion
[9] The trial court did not abuse its discretion by denying Mother’s motion to
continue the hearing. We affirm.
[10] Affirmed.
[11] Riley, J., and Bailey, J., concur.
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