IN RE: the Termination of the Parent-Child Relationship of A.Y. (Minor Child); (2025)

MEMORANDUM DECISION

Case Summary

[1] The trial court granted a petition filed by the Indiana Department of Child Services (“DCS”) to terminate the parental rights of J.D. (“Mother”) to her minor son, A.Y. (“Child”). Mother appeals and claims: (1) the trial court abused its discretion by denying Mother's request for a continuance; and (2) the trial court erred in the admission of evidence. We disagree and, accordingly, affirm.

Issues

[2] Mother raises two issues, which we reorder and restate as:

I. Whether the trial court abused its discretion by denying Mother's request for a continuance.

II. Whether the trial court erred in the admission of evidence.

Facts

[3] Child was born to Mother and L.Y. (“Father”)¹ in September 2021. Under the terms of a paternity decree, Father had custody of Child, and Mother had parenting time. In April 2023, DCS received a report that Father was homeless, living in his car, using methamphetamine, and had assaulted his girlfriend while she was holding Child. At that time, Mother was incarcerated in a community corrections facility. Child was removed from parental custody on May 10, 2023, and a petition alleging that Child was a child in need of services (“CHINS”) was filed on May 15, 2023.

[4] The trial court adjudicated Child to be a CHINS on June 6, 2023, and entered a dispositional decree on July 6, 2023, which ordered Mother to participate in various services, including: (a) contacting the family case manager (“FCM”) on a weekly basis; (b) allowing the FCM, guardian ad litem (“GAL”), or court-appointed special advocate (“CASA”) to make unannounced visits to Mother's home; (c) enroll in any program recommended by the FCM; (d) keep all appointments with the FCM, GAL, or CASA; (e) sign any releases necessary for the FCM to monitor Mother's compliance with the court's order; (f) maintain safe, suitable, and stable housing; (g) secure a legal and stable source of income; (h) obey the law; and (i) follow all terms of Mother's probation.

[5] Throughout the pendency of the CHINS case, Mother was repeatedly incarcerated. FCM Loussa Numa testified that Mother was “in and out [of jail] pretty much the whole case” and would contact DCS when released from jail, be incarcerated again, and then “fall off” until her next release. Tr. Vol. II p. 53. Mother's contact information changed frequently, and her phone numbers would be disconnected without notice to DCS. Despite a visitation referral remaining open throughout the case, Mother's participation in visits with Child was inconsistent due to her repeated incarceration.

[6] On April 17, 2024, FCM Numa administered a drug screen to Mother, which tested positive for amphetamine and methamphetamine. During the pendency of the CHINS case, Mother did not complete a substance abuse evaluation or treatment, did not maintain stable housing or employment, and refused to sign releases allowing DCS to communicate with her probation officer.

[7] On October 7, 2024, DCS filed a petition to terminate Mother's parental rights. The fact-finding hearing commenced on January 9, 2025. At the outset of the hearing, Mother orally requested a continuance so she could hire private counsel and have more time to engage in services. Mother argued there was no urgency to hear the case because Child had only been placed with his current foster family approximately two months earlier. The trial court denied the motion, noting its calendar was full and that another opportunity for the fact-finding hearing would not occur for ninety days.

[8] During the January 9 hearing, the trial court recessed to allow Mother to submit to a drug screen after she admitted to using marijuana earlier that day. The test results showed Mother was positive for THC, methamphetamine, and amphetamine. Based on this result, the trial court suspended Mother's visits with Child until she could produce three consecutive negative drug screens. Mother's counsel moved to strike Mother's testimony because she was under the influence while testifying, and the trial court took the motion under advisement.² The trial court continued the fact-finding hearing to January 24, 2025.

[9] Following the January 9 hearing, the trial court ordered Mother to call FCM Numa and meet with her weekly. Mother failed to comply. FCM Numa testified that she scheduled a meeting with Mother for the Thursday after the hearing at 11:30 a.m. at the local DCS office, but Mother failed to appear. When FCM Numa called Mother at 11:44 a.m., Mother stated she had forgotten about the meeting and was on her way to meet with her probation officer and could “swing by” the office. Tr. Vol. II p. 57. But Mother never appeared, and she never called FCM Numa back.

[10] The fact-finding hearing recommenced on January 24, 2025. DCS presented evidence that Mother had not seen Child between August 2023 and January 8, 2025. On January 8, 2025, Mother had a supervised visit with Child, which she ended early. The visitation supervisor testified that there was no bond between Mother and Child; Child did not know Mother and asked her what her name was. CASA Deborah Gamache observed a visit between Mother and Child and testified that, when Mother tried to hug Child, he did not want her to do so.

[11] FCM Numa testified that Child was currently in a pre-adoptive placement and was bonded to his caregivers, who desired to adopt him. FCM Numa also testified that Child had made significant improvements, especially in socialization and speech, and was doing very well in his current foster home. CASA Gamache similarly testified that Child was doing “much better” in his current foster home, had grown developmentally, and was bonded with his foster parents and their family. Tr. Vol. II p. 87.

[12] DCS offered into evidence Exhibits 2A-N and 3A-E, which consisted of hundreds of pages of court documents and filings from Mother's various criminal cases spanning multiple years. Exhibits 2A-N consisted of documents detailing Mother's criminal history prior to the CHINS case. Mother objected to Exhibit 2 on relevancy grounds, arguing the cases were old. Exhibits 3A-E consisted of documents detailing Mother's criminal history during the CHINS case, and Mother objected to these exhibits based on “weight,” claiming that some of the cases filed against her had been dismissed. Id. at 26. The trial court admitted these exhibits over Mother's objections. The exhibits documented Mother's extensive criminal history, including multiple arrests and convictions for offenses including domestic battery, fraud, and invasion of privacy, with several cases occurring during the pendency of the CHINS case.

[13] Mother testified that she had recently been released from custody and had obtained employment and was living with a friend. She acknowledged using methamphetamine and claimed that she would benefit from services if given more time. Mother testified that she has five children, four of whom are in the care of their respective fathers, and none of whom are in her custody.

[14] On April 9, 2025, the trial court issued findings of fact and conclusions thereon terminating Mother's parental rights. Mother now appeals.

Discussion and Decision

I. The trial court did not abuse its discretion by denying Mother's request for a continuance.

[15] We first address Mother's argument that the trial court abused its discretion by denying her request for a continuance. Mother requested a continuance at the beginning of the first day of the fact-finding hearing to retain private counsel and because, having recently been released from incarceration, she had not had the opportunity to engage in services.

[16] “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 Fam. & Child., 841 N.E.2d 615, 619 (Ind. Ct. App. 2006)). When a trial court denies a party's motion for a continuance, there is a strong presumption that the trial court properly exercised its discretion. In re N.K., 249 N.E.3d 607, 615 (Ind. Ct. App. 2024).

[17] Our Supreme Court has held that “ ‘[a]n 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.’ ” K.W., 12 N.E.3d at 244 (quoting Rowlett, 841 N.E.2d at 619). The reference to a showing of “good cause” appears to be based on former Indiana Trial Rule 53.5, which provided in relevant part: “Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence.” (emphasis added).

[18] Effective January 1, 2025, former Trial Rule 53.5 was repealed, and motions to continue are now governed by Trial Rule 7(D). See In re O.M., 266 N.E.3d 326, 330 n.5 (Ind. Ct. App. 2025). The fact-finding hearings in this case were held on January 9 and 25, 2025, and Mother's motion to continue is, accordingly, governed by Trial Rule 7(D), which provides:

(1) A party must file a motion for continuance as soon after the cause for continuance or delay is discovered by the party seeking the same.

(2) Any written motion to continue a matter must be filed pursuant to subdivision (B) and must include:

(a) A statement that the opposing party has no objection;

(b) A statement that the opposing party objects; or

(c) A statement that the opposing party's position is unknown, and the date, time, and method by which the moving party filing the motion attempted to obtain agreement and the result, or why such outreach was not possible.

(3) If a party did not comply with subdivision (D)(2), a court may grant a motion for continuance only if the moving party certifies to the court, in writing, the efforts made to give notice and the reasons supporting the moving party's claim that actual notice should not be required.

(4) A party's motion must include:

(a) the approximate amount of time needed to elapse before the matter can be heard, and,

(b) a good faith estimate of the time needed for the rescheduled hearing or trial.

Ind. Trial Rule 7(D). This new rule contains no reference to a showing of “good cause,” but it appears to leave continuances to the discretion of the trial court, so long as the procedural requirements of the rule are met. See T.R. 7(D)(3) (stating that the trial court “may” grant a motion for continuance if the movant satisfies certain conditions).

[19] Here, Mother's oral motion to continue, made the day of the first fact-finding hearing, met none of these procedural requirements. Even if we assume that it was filed “as soon after the cause for continuance or delay [was] discovered,” Mother's request did not state whether DCS objected to a continuance, or whether Mother had attempted to contact DCS to ascertain whether it objected to a continuance. T.R. 7(D)(1). Because of this, the trial court could grant Mother's request for a continuance only if she “certifie[d] to the court, in writing, the efforts made to give notice and the reasons supporting the moving party's claim that actual notice should not be required.” T.R. 7(D)(3). Mother also failed to indicate “the approximate amount of time needed to elapse before the matter could be heard,” or an “estimate of the time needed for the rescheduled hearing[.]” T.R. 7(D)(4). For these reasons, the trial court did not err in denying Mother's request for a continuance.

[20] Moreover, even if the “good cause” requirement of former Trial Rule 53.5 survived the adoption of Trial Rule 7(D), Mother did not show good cause for a continuance. Mother demonstrated a failure to cooperate with DCS or engage in services, repeatedly committed crimes resulting in her incarceration, failed to consistently visit Child, failed to address her addiction issues, and repeatedly tested positive for drugs. Child was removed from parental care on May 10, 2023, and was found to be a CHINS on June 6, 2023; the fact-finding hearings were held in January 2025. Despite the passage of over a year and a half, Mother had made no progress. Given Mother's pattern of behavior, the trial court could reasonably conclude that Mother would not change even if given more time.

[21] Accordingly, we cannot say that the trial court abused its discretion by denying Mother's last-minute motion for a continuance. See Blackford v. Boone Cnty. Area Plan Comm'n, 43 N.E.3d 655, 664 (Ind. Ct. App. 2015) (noting that “continuances to allow time for additional preparation are generally disfavored,” and “[a] continuance requested for the first time on the morning of trial is not favored”) (citing Lewis v. State, 512 N.E.2d 1092, 1094 (Ind. 1987)).³

II. The trial court did not commit reversible error by admitting Mother's criminal records into evidence.

[22] Mother also argues that the trial court erred by admitting into evidence the voluminous records of her prior criminal history. We review a trial court's decision on the admission of evidence for an abuse of discretion. In re N.E., 228 N.E.3d 457, 473 (Ind. Ct. App. 2024). A trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court. Id. “It is well-established that errors in the admission of evidence are to be disregarded as harmless error unless they affect the substantial rights of a party.” Id. (internal quotations and citations omitted).

[23] Here, Mother challenges the admission of Exhibits 2A-N and 3A-E, which comprised almost 400 pages documenting her extensive criminal history before and during the underlying CHINS case. Mother argues that the trial court improperly admitted these exhibits as “demonstrative” evidence; the exhibits contain inadmissible hearsay; and the prejudicial nature of the exhibits outweighed any probative value they might have had. But at the fact-finding hearing, Mother objected to Exhibits 2A-N on grounds that they were irrelevant because many of the criminal cases occurred before the CHINS proceedings were initiated and that the Exhibits were improper character evidence. And Mother objected to Exhibits 3A-E on grounds of “weight” because many of the criminal cases listed were ultimately dismissed. A party may not object on one ground at trial and then argue a different basis on appeal. In re Paternity of K.H., 116 N.E.3d 504, 512 (Ind. Ct. App. 2018) (citing Francies v. Francies, 759 N.E.2d 1106, 1113 (Ind. Ct. App. 2001)). To the extent that Mother did not object on the grounds she now argues on appeal, her argument is waived. Id.

[24] Waiver notwithstanding, any error in the admission of the challenged exhibits was, at most, harmless. As we explained in Roser v. Silvers:

In a bench trial, the harm from any evidentiary error is lessened. In bench trials, we presume that the court disregarded inadmissible evidence and rendered its decision solely on the basis of relevant and probative evidence. Any harm from evidentiary error is lessened, if not completely annulled, when the trial is by the court sitting without a jury.

698 N.E.2d 860, 864 (Ind. Ct. App. 1998) (citations omitted); accord In re Paternity of H.R.M., 864 N.E.2d 442, 450 (Ind. Ct. App. 2007). Here, the trial court explicitly acknowledged that it would “determine what if any weight” to give to Mother's criminal history and that it “virtually g[a]ve no weight” to cases substantially before Child's birth. Tr. Vol. II p. 25. These statements show that the trial court based its decision on relevant and probative evidence.

[25] There was also substantial independent evidence outside the challenged exhibits that supports the trial court's termination decision. First, there was evidence other than Exhibits 2 and 3 that established that Mother was often incarcerated—FCM Numa testified that Mother was “in and out” of jail during the CHINS proceedings. Tr. Vol. II p. 53. Mother also admitted to smoking marijuana on the first day of the fact-finding hearing, and she later tested positive for methamphetamine, amphetamine, and THC.

[26] DCS also presented evidence that Mother participated in only eight visits during the entire CHINS case, and Child did not recognize Mother and resisted when she attempted to show him physical affection. Mother could not answer basic questions about Child, including what size clothing he wore or whether he was toilet trained. Mother admitted refusing to sign releases for DCS, further hindering reunification efforts. And while she claimed to be starting work at a farm, Mother had never provided employment verification to the FCM, and the FCM had not yet had a chance to inspect Mother's housing.

[27] In addition, the FCM testified that Mother was not an appropriate placement for Child. The CASA testified that termination of Mother's parental rights and adoption was in Child's best interests. Recommendations by a FCM or CASA to terminate parental rights, “in addition to evidence that the conditions resulting in removal will not be remedied, [are] sufficient to show by clear and convincing evidence that termination is in the child's best interests.” In re J.S., 133 N.E.3d 707, 716 (Ind. Ct. App. 2019); see also In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (affirming trial court's conclusion that termination was in child's best interest based on opinions of the CASA, GAL, and child's psychiatrist).

[28] We, therefore, conclude that there is substantial independent evidence supporting the trial court's termination decision such that there is no likelihood that the challenged exhibits contributed to the trial court's decision. Indeed, the trial court's decision rested on Mother's ongoing substance abuse, chronic instability, failure to engage with services, and inability to parent Child, not simply on the format or content of the exhibits detailing her extensive criminal history.⁴ Thus, any error in the admission of Exhibits 2 and 3 was harmless.⁵

Conclusion

[29] The trial court did not abuse its discretion by denying Mother's motion to continue, nor did the trial court commit any reversible error in the admission of evidence. Accordingly, we affirm the trial court's judgment.

[30] Affirmed.

FOOTNOTES

1.   Father died in June 2023.

2.   The trial court does not appear to have ruled on Mother's motion to strike her testimony.

3.   We also note that the trial court did continue the fact-finding hearing for three weeks after Mother tested positive for illicit drugs.

4.   Mother briefly claims that the trial court's reliance on the exhibits detailing Mother's criminal history violated her due process rights. Mother fails to develop this argument, and we, therefore, consider it waived. See In re C.C., 170 N.E.3d 669, 675 (Ind. Ct. App. 2021) (holding that Mother waived appellate arguments by failing to support them with cogent reasoning as required by Appellate Rule 46(A(8)(a)).

5.   We note, however, that the better practice would have been for DCS to submit only the relevant portions of Mother's criminal history. In fact, the judgments of conviction alone could have established Mother's prior criminal history. By submitting voluminous records containing irrelevant and unnecessary materials, DCS put the trial judge in the unenviable position of having to filter through hundreds of pages of exhibits to determine what was relevant.

Tavitas, Judge.

Bailey, J., and Kenworthy, J., concur.