B.H. (Father), Appellants/Respondent v. Indiana Department of Child Services, Appellee/Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] B.H. (“Father”) has two living children with M.C. (“Mother”),¹ B.C. (d/o/b December 17, 2015) and P.C. (d/o/b November 30, 2020) (collectively, “Children”). In May of 2022, the Indiana Department of Child Services (“DCS”) received a report that Father's Child B.H. had died and removed Children from Father's and Mother's care. In June of 2022, the juvenile court found Children to be children in need of services (“CHINS”) and ordered Father to participate in several services. In September of 2022, the State charged Father with several crimes related to the alleged neglect of his children.

[2] In February of 2024, the juvenile court changed the permanency plan for Children to adoption, and, in April of 2024, DCS petitioned to terminate Father's parental rights to them. In October of 2024, at the beginning of the factfinding hearing, Children's guardian ad litem (“GAL”) moved for a continuance, citing an automobile accident Father had been in a few weeks previously. Father's mental-health therapist and a nurse practitioner, both of whom had seen Father since the accident, testified that they had not noticed any memory loss or impaired mental functioning in Father and that he would be able to assist his counsel. The juvenile court denied the continuance request and, after the factfinding hearing, ordered the termination of Father's parental rights to Children. Father contends that the juvenile court abused its discretion in denying the request for a continuance and that the denial also violated his rights to due process. We affirm.

Facts and Procedural History

[3] On May 2, 2022, DCS received a report regarding the death of Father's child B.H. DCS family case manager Mackenzie Thorpe (“FCM Thorpe”) responded to Father's home, found B.H. deceased, and noted that the home was unsanitary with “urine and feces [e]mbedded in the floor.” Appellant's App. Vol. II p. 20. Children were dirty and had matted hair and B.C.’s situation was “critical [․] when [FCM Thorpe] removed him[;]” he was taken to an emergency room to address his untreated cystic fibrosis. Tr. Vol. II p. 44. Two days later, the juvenile court allowed DCS to petition to have Children found to be CHINS.

[4] On June 2, 2022, the juvenile court found Children to be CHINS after it accepted mediated stipulations from Mother and Father, including that they had struggled to maintain an appropriate home and that the juvenile court's coercive intervention was needed. The juvenile court entered a dispositional order the same day providing, in part, that Father was to submit to a diagnostic evaluation and follow all recommendations, obtain a drug and alcohol assessment and follow all recommendations, enroll in home-based services, submit to random drug screens and not use illegal substances, and attend visits with Children. At that time, Children had already been placed with relatives.

[5] On September 8, 2022, the State charged Father with Level 1 felony neglect of a dependent causing death, Level 3 felony neglect of a dependent causing serious bodily injury, and four counts of Level 6 felony neglect of a dependent,² and, on October 13, 2022, the criminal court entered no-contact orders with respect to Children. On May 30, 2023, the juvenile court held a permanency hearing, after which it found that Father had not been participating in services and had tested positive for illegal substances. On February 6, 2024, the juvenile court found that Father had tested positive for illegal substances, had not participated in a psychological evaluation, had not enrolled in therapy, and had not demonstrated an ability to benefit from services. The same day, the juvenile court changed the permanency plan to adoption.

[6] On April 24, 2024, DCS petitioned to terminate Father's parental rights to Children. On October 8, 2024, the juvenile court conducted a factfinding hearing. Before the hearing, the juvenile court noted that the guardian ad litem (“GAL”) had moved for a hearing on Father's competency. Mental-health therapist Tim Prentice testified that Father had been one of his clients for approximately one year and had been in an automobile accident the previous month. Prentice indicated that he had seen Father approximately three weeks before the hearing and that he was “cogent[,]” he had been engaged in the session, his memory had “seemed fine[,]” and Prentice had not noticed anything different about his cognitive abilities. Tr. Vol. II p. 9.

[7] Nurse practitioner Alisa Briones testified that she had seen Father twice since his accident. Briones testified that Father had seemed able to engage and understand what they were discussing, he had asked intelligent questions, and she had not noticed any “memory loss or issues[.]” Tr. Vol. II p. 15. When asked if she had any concerns about Father's ability to assist his attorney, Briones answered, “At this time no.” Tr. Vol. II p. 15. The GAL requested a continuance, which motion the juvenile court denied.

[8] During the factfinding hearing, court-appointed special advocate Michael Howell (“CASA Howell”) testified that he had been involved with the case since the beginning of the CHINS proceedings and that adoption by Children's current placement was in their best interests. Permanency FCM Rachel Amiot testified that she had been on Father's case since December of 2023. According to FCM Amiot, B.H. had “medical special needs” due to his cystic fibrosis, which parents had been unable to address and that the conditions that led to the Children's removal from Father's care had not been remedied. Tr. Vol. II p. 50. FCM Amiot testified that Father had not completed a diagnostic assessment, had not participated in substance-abuse treatment until his unsuccessful discharge in December of 2023, had not participated in home-based casework despite three separate referrals, and had only been “[s]omewhat” compliant with drug-screening requirements. Tr. Vol. II p. 59. FCM Amiot indicated that Father had made “minimal” progress in his individual therapy. Tr. Vol. II p. 61. Overall, Father had not taken advantage of court-ordered services.

[9] FCM Amiot expressed concerns regarding Father's ability to parent the Children, specifically his ability to address B.H.’s medical needs, and opined that the issues that had led to the Children's removal would never be remedied. FCM Amiot testified that the Children were doing “extremely well” and “thriving” in their current placement, B.H. was “the healthiest he has ever been [․] since being with this placement[,]” and termination of Father's parental rights and adoption by their current placement were in the Children's best interests. Tr. Vol. II p. 63. On October 25, 2024, the juvenile court issued its order terminating Father's parental rights to the Children.

Discussion and Decision

[10] “The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children.” Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). Moreover, we acknowledge that the parent-child relationship is “one of the most valued relationships in our culture.” Id. (citation omitted). Although parental rights are of a constitutional dimension, the law allows for the termination of those rights when parents are unable or unwilling to meet their responsibilities as parents. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Parental rights are not absolute and must be subordinated to the children's interests in determining the appropriate disposition of a petition to terminate the parent-child relationship. Id. The Indiana Supreme Court has made clear that the “purpose of terminating parental rights is not to punish parents, but to protect the children.” Egly v. Blackford Cnty. Dep't. of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992). “Termination of parental rights is proper where the children's emotional and physical development is threatened.” In re T.F., 743 N.E.2d at 773. The juvenile court need not wait until the children are irreversibly harmed such that their physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id.

[11] In reviewing termination proceedings on appeal, we will not reweigh the evidence or assess the credibility of the witnesses. In re Invol. Term. of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile court's decision and reasonable inferences drawn therefrom. Id. We recognize the juvenile court's “unique ability to see the witnesses, observe their demeanor, and scrutinize their testimony, as opposed to this court's only being able to review a cold transcript of the record.” Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). Father contends that the juvenile court abused its discretion in denying the GAL's motion for a continuance, which was seconded by CASA Howell and Father's counsel. Father also contends that the trial court's denial of the continuance amounted to a denial of due process.

I. Continuance Motion

[12] We review a juvenile court's decision to grant or deny a motion to continue for an abuse of discretion. 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. (citation and quotation marks omitted). “The party seeking a continuance must show that he or she is free from fault” and there is a “strong presumption that the trial court properly exercised its discretion.” In re B.H., 44 N.E.3d 745, 748 (Ind. Ct. App. 2015), trans. denied. As Father himself notes, “[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).

A. Good Cause

[13] On the question of Father's competency, the juvenile court made the following finding, which Father challenges:

Prior to the Factfinding, a hearing on [Father]’s competency was held. At issue was the question as to whether he suffered from cognitive or memory impairment such that would adversely affect his ability to assist counsel. [Father] suffered a concussion from an automobile accident in September, 2024. [Father] asserts that his injury impacted his ability to recall events form [sic] his past. However, from the testimony of [Father]’s therapist, Tim Prentice, and his nurse practitioner, Alisa Briones, the court finds that they did not observe [Father] to have any cognitive or memory issues. The court found that [Father] was able to effectively assist his counsel and further permitted his significant other to sit at the counsel table to assist as well. The motion to continue the Factfinding was denied.

Appellant's App. Vol. II pp. 19–20. Father has not established that this finding is clearly erroneous, and has therefore failed to establish good cause for the continuance. See In re S.P.H., 806 N.E.2d at 879 (“A finding of fact is clearly erroneous when there are no facts or inferences drawn therefrom to support it.”). Prentice and Briones, medical professionals who had seen Father post-accident, both testified that they had detected no signs of memory or cognitive issues and opined that he would be able to assist in his defense. This is sufficient to support the juvenile court's conclusion. Father draws our attention to contrary evidence and statements from the GAL and his own counsel regarding their observations about Father. This, however, is nothing more than an invitation to reweigh the evidence, which we will not do. See In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (explaining that we “do not reweigh the evidence or determine the credibility of witnesses, but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence.”) (citation and quotation marks omitted).

B. Prejudice

[14] Father also failed to show that he was prejudiced by the denial, as the record does not support his claims of his counsel's inability to properly cross-examine the witnesses, examine the exhibits, or otherwise prepare a defense. At the factfinding hearing, Father's counsel noted that she had been with Father for “a long time[.]” Tr. Vol. II p. 25. All indications are that Father's counsel had represented him throughout the CHINS and TPR proceedings, having signed the stipulation that Children were CHINS back in June of 2022. Because Father's counsel had represented Father throughout the CHINS proceedings, she was familiar with the evidence presented during the subsequent review and permanency hearings leading up to DCS filing its termination petition, including, among other evidence, evidence regarding Father's lack of compliance with the dispositional decree. The relevant chronological case summaries include entries for a preliminary witness and exhibit list and DCS's supplemental discovery filing. At the factfinding hearing, Father's counsel called Father and his girlfriend as witnesses and cross-examined DCS's witnesses. To summarize, all indications are that Father's counsel was thoroughly familiar with the evidence and able to effectively represent him.

[15] The cases on which Father relies to support his argument are readily distinguished. In J.P. v. G.M, 14 N.E.3d 786 (Ind. Ct. App. 2014), a grandparent-visitation case, we reversed the juvenile court's denial of the father's request for a continuance made at the beginning of the hearing. Id. at 789–90. Unlike here, however, the father in J.P. had never had counsel and had moved for the continuance specifically in order to obtain counsel. Id. Father's case is also unlike F.M. v. N.B., 979 N.E.2d 1036, 1040–42 (Ind. Ct. App. 2012), in which we concluded that the trial court had abused its discretion in denying the mother's motion to continue after her private counsel had withdrawn, which, again, did not happen here. Father's circumstances are likewise different from those before the court in Smith v. Smith, 136 N.E.3d 656 (Ind. Ct. App. 2019). Here, unlike in Smith, Father did not fire his counsel, Father's counsel was familiar with the evidence from the CHINS proceedings, Father does not identify any additional evidence that he wanted to present at the factfinding hearing but was unable to, and the juvenile court in this case gave Father the opportunity to show cause for a continuance. See id. at 658–59.

[16] Finally, the holding in Gunashekar v. Grose, 915 N.E.2d 953 (Ind. 2009), does not help Father. In that case, the Indiana Supreme Court explained that

[i]n ruling on the request to postpone, the trial court was entitled to consider how long the trial had been scheduled, the lack of explanation for eight weeks of apparent inaction, the relative simplicity of a three-witness bench trial, and the potential that the request was a conscious gaming of the system.

Id. at 956. Here, while it does not necessarily appear that Father was trying to game the system, it is uncontested that he only moved for a continuance on the day of the hearing. Moreover, while the record suggests that there may have been an earlier hearing addressing the issue of Father's competency, it was Father's obligation to request any such hearing be included in the record on appeal, and he did not request a transcription of any such hearing, assuming it occurred. See, e.g., Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App. 2004) (observing that “appellant bears the burden of presenting a record that is complete with respect to the issues raised on appeal”), trans. denied. Father has failed to establish that the juvenile court abused its discretion in denying the GAL's motion to continue the factfinding hearing.

II. Due Process

[17] Father contends that the juvenile court's denial of the continuance request also denied him due process of law. “The Due Process Clause of the U.S. Constitution and the Due Course of Law Clause of the Indiana Constitution prohibit state action that deprives a person of life, liberty, or property without a fair proceeding.” In re C.G., 954 N.E.2d 910, 916 (Ind. 2011) (citation and quotation marks omitted). While “[p]arental rights constitute an important interest warranting deference and protection[,] children have an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous relationships.” Id. at 916–17 (citations omitted). “Due Process has never been defined, but the phrase embodies a requirement of ‘fundamental fairness.’ ” Id. at 917 (citation omitted). The “ ‘fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.’ ” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

[18] Father specifically identifies the juvenile court's denial of his request for a continuance as a denial of his right to due process, and we have concluded “ ‘[t]here 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.’ ” J.P. v. G.M., 14 N.E.3d 786, 790 (Ind. Ct. App. 2014) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).

[19] For essentially the same reasons that Father has failed to establish an abuse of discretion, he has failed to establish that he was denied due process by the juvenile court's refusal to grant a continuance. As mentioned, there was nothing arbitrary in the denial, as two medical professionals testified that they had no concerns about Father's mental acuity or his ability to assist in his defense, testimony the juvenile court was permitted to credit, did credit, and specifically identified as the evidence upon which it relied. Also as mentioned, Father is unable to show that he suffered any prejudice from the denial, as the record as a whole indicates that he was heard in a meaningful manner, with his long-time counsel demonstrating familiarity with the record and the capability to effectively examine and cross-examine witnesses. Considering the evidence tending to undercut Father's claim of good cause and the ample evidence that he was heard in a meaningful way, he has failed to establish that he was denied the process due to him.

[20] The judgment of the juvenile court is affirmed.

FOOTNOTES

1.   Mother does not participate in this appeal.

2.   Father's criminal trial is set to begin on June 10, 2025.

Bradford, Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.