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B.E. v. Ind. Dep't of Child Servs. (In re M.R.F.)

Court of Appeals of Indiana.
Nov 17, 2021
178 N.E.3d 835 (Ind. App. 2021)

Opinion

Court of Appeals Case No. 21A-JC-803

11-17-2021

In the MATTER OF M.R.F. and A.T.B., Children in Need of Services, B.E., Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.

Attorney for Appellant: Jon J. Olinger, Deputy Public Defender, Fort Wayne, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Monika Prekopa Talbot, Robert J. Henke, Deputy Attorneys General, Indianapolis, Indiana


Attorney for Appellant: Jon J. Olinger, Deputy Public Defender, Fort Wayne, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Monika Prekopa Talbot, Robert J. Henke, Deputy Attorneys General, Indianapolis, Indiana

MEMORANDUM DECISION

Molter, Judge.

[1] B.E. ("Stepfather") is married to A.B. ("Mother") and is the stepfather of her children, M.R.F. and A.T.B. ("Children"). The Indiana Department of Child Services ("DCS") removed Children from Mother's care and initiated a child in need of services case ("CHINS"). On the morning of the CHINS hearing, after two continuances had been granted previously, Stepfather moved to continue the factfinding hearing for a third time because he was incarcerated out of state and unable to attend. J.F. ("Father"), DCS, and the court-appointed special advocate ("CASA") all objected, and the trial court denied the continuance.

[2] Stepfather appeals from the juvenile court's order adjudicating Children as CHINS on the basis that he believes the trial court erred by denying his motion to continue. Because the trial court did not abuse its discretion when denying his last-minute continuance request for a hearing which had previously been continued twice and was being held as a statutory deadline was about to expire, and because Stepfather does not identify any prejudice, we affirm.

Facts and Procedural History

[3] Mother is Children's biological mother, and J.F. is the biological father of M.R.F. and the alleged biological father of A.T.B. Mother is married to and lives with Stepfather, who is a caregiver of Children.

[4] Between June 14, and September 23, 2020, police were dispatched to Mother and Stepfather's residence on approximately five occasions, and when the police arrived, Mother and Stepfather acted erratically each time and were yelling and screaming. On September 22, 2020, Mother and Stepfather had a domestic dispute in the presence of Children, and the police officers who responded to the scene observed that Mother was visibly upset and smelled of alcohol. The police spoke with A.T.B., who was also visibly upset, and he told them that Stepfather had struck him on the arm. Mother told police that she and Stepfather had been drinking at a friend's house and got into an argument on the way home and began hitting each other. Mother stated that Stepfather called her a vulgar word and admitted to a police officer that she had struck Stepfather first, hitting him five to seven times. The police arrested her for domestic battery. After Mother's arrest, DCS took Children to their maternal grandfather's residence.

[5] The following day, Stepfather called the police because "his father-in-law had his son[,] and he wanted his son back from the father-in-law." Tr. at 86, 100. That exchange culminated with police arresting Stepfather for disorderly conduct and public intoxication. The State charged him with resisting law enforcement as a Class A misdemeanor and disorderly conduct and public intoxication, both as Class B misdemeanors. Stepfather pleaded guilty to Class A misdemeanor resisting law enforcement and was sentenced to one year suspended to probation.

[6] On September 24, 2020, DCS removed Children from Mother's care based on the circumstances that both Mother and Stepfather had been arrested within forty-eight hours of each other, and DCS placed Children in the care of maternal grandfather based on the recommendation of Mother. Id. at 112–14. On September 28, 2020, DCS filed a petition alleging that Children were CHINS because both Mother and Stepfather were unable to provide Children with a home free from neglect or domestic violence. Appellant's App. Vol. 2 at 63–67.

[7] The juvenile court originally set the case for a factfinding hearing on December 1, 2020, but the hearing was continued at Stepfather's request. Tr. at 7. Although it is not entirely clear why a continuance was requested, the hearing had been scheduled with Magistrate Sherry Hartzler presiding, and the attorney for CASA later explained that the hearing had been moved because "she can't hear this case," referring to the magistrate. Id. The hearing was continued to January 6, 2021, and then it was continued a second time to January 25, 2021, due to Mother's surgery. Id. at 8.

The juvenile court then set the factfinding hearing for January 25, 2021. Id. at 4. On the date of the hearing, Stepfather was represented by counsel who was present, but Stepfather was not present because he was incarcerated in Michigan for a "fugitive on the run" charge. Id. at 4–5, 67. At the beginning of the hearing, Stepfather, by counsel, asked for a continuance because of Stepfather's inability to attend the hearing due to his incarceration. Id. at 5-6. However, counsel did not provide the court with any indication of how recently Stepfather had been incarcerated or when he might be available to attend the factfinding hearing.

[8] Mother also requested a continuance because she was dissatisfied with her counsel and wanted to proceed with new counsel, but Father objected to any continuance, arguing that the hearing had been set for some time and that he had driven to the hearing from Illinois. Id. at 4–6. DCS and the CASA also objected to any continuance because the case had been continued twice previously, because Stepfather's absence from the hearing was a result of his own choices, and because there were witnesses present and ready to testify. Id. at 6–7. The juvenile court denied the request for a continuance, stating that the matter had been set on three separate occasions and that Mother's new attorney had not yet filed an appearance, and proceeded with the hearing. Id. at 8.

[9] During the hearing, Stepfather's counsel cross-examined witnesses, including eliciting favorable testimony through the cross-examination of Mother. Id. at 40–44, 47–49, 70. Following the hearing, on February 19, 2021, the juvenile court issued an order adjudicating Children to be CHINS. Appellant's App. Vol. 2 at 41–46. On April 12, 2021, the juvenile court held a dispositional hearing for Stepfather and issued a dispositional and parental participation order. Id. at 58–62. Stepfather now appeals.

Discussion and Decision

[10] The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court. F.M. v. N.B. , 979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012). We will reverse the trial court's decision only for an abuse of that discretion. Id. " ‘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." In re K.W. , 12 N.E.3d 241, 244 (Ind. 2014) (quotations omitted).

[11] Stepfather argues that the juvenile court abused its discretion when it denied his motion to continue the factfinding hearing. He asserts that his interests as a caregiver for Children were substantial and that he should have been given the opportunity to present a defense to DCS's allegations. He also contends that he had good cause for the continuance because he was incarcerated in Michigan at the time and, because no one knew of his incarceration until the day of the hearing, it was not possible to set up an alternative means for him to participate in the hearing.

[12] Our analysis begins with the statutory deadline for holding the hearing. If the factfinding hearing is not held within 120 days of the CHINS petition, Indiana Code section 31-34-11-1 directs the trial court to dismiss the case without prejudice upon a motion.

(a) Except as provided in subsection (b), unless the allegations of a petition have been admitted, the juvenile court shall complete a factfinding hearing not more than sixty (60) days after a petition alleging that a child is a child in need of services is filed in accordance with IC 31-34-9.

(b) The juvenile court may extend the time to complete a factfinding hearing, as described in subsection (a), for an additional sixty (60) days if all parties in the action consent to the additional time.

....

(d) If the factfinding hearing is not held within the time set forth in subsection (a) or (b), upon a motion with the court, the court shall dismiss the case without prejudice.

Ind. Code § 31-34-11-1.

[13] Here, the CHINS petition was filed on September 28, 2020, so the factfinding hearing on January 25, and 26, 2021, occurred on the 119th and 120th days after the petition was filed. Another continuance would have meant the factfinding hearing would have been held outside the 120-day period allowed by the statute.

[14] Even with this statutory deadline, the trial court retained some discretion. Indiana Trial Rule 53.5 provides, "[u]pon 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." Our Supreme Court has concluded that "[b]ecause our trial rules trump statutes on matters of procedure, Rule 53.5 allows extension of the 120-day deadline in Indiana Code section 31-34-11-1(b) provided a party can show ‘good cause.’ " In re M.S. , 140 N.E.3d 279, 284 (Ind. 2020).

[15] Indiana courts have "consistently observed the principle that ‘the purpose of a CHINS adjudication is to protect children, not punish parents.’ " Id. at 284–85 (quoting In re Eq.W. , 124 N.E.3d 1201, 1209 (Ind. 2019) ). Therefore, trial courts are afforded considerable discretion in ruling on motions for continuances, including determining whether the moving parties have shown good cause for requesting a continuance. Id. at 285. There are no "mechanical tests" for determining whether a request for a continuance was made for good cause, so the decision to grant or deny a continuance turns on the circumstances present in a particular case. Id.

[16] Based on the circumstances here, we do not believe the juvenile court abused its discretion. The factfinding hearing had been previously continued twice, once at Stepfather's request. Although Stepfather was unable to attend the factfinding hearing due to his incarceration in Michigan, there is nothing in the record indicating when he had been arrested, how long he would be incarcerated, and his potential release date. Therefore, there was no evidence showing how recently Stepfather had been incarcerated and when he might be available to attend the factfinding hearing that would need to be rescheduled outside of the 120-day statutory time frame. Further, Father objected to a continuance because the hearing had been scheduled for some time, and he had driven from Illinois to participate in the hearing. Both DCS and the CASA also objected to continuing the hearing because it had been reset multiple times, and all of the witnesses were ready to testify.

[17] Additionally, Stepfather has not identified any prejudice caused by the denial of his request for a continuance. He was represented by counsel at the factfinding hearing, and his counsel cross-examined the witnesses against Stepfather and was able to elicit positive testimony about Stepfather through his questioning of Mother. Tr. at 40-49, 70. Although Stepfather did not present any separate evidence, he has not explained why he believes the outcome of the hearing would have been different in light of the evidence his counsel obtained from Mother, who shared the same interests as Stepfather.

[18] For example, she testified that Stepfather accompanied her to her treatments, and they attended couples’ counseling to learn to work through their disagreements. Id. at 40–41. Mother testified that Stepfather goes with her to AA meetings, is also involved in A.T.B.’s treatment, helps her with structure and routine in the home, and helps her with grocery shopping and other household chores. Id. at 42, 47–48. Mother also stated that Stepfather has been "the caregiver and breadwinner" for the last four or five years and has helped maintain a structure in the house. Id. at 48. She further testified that Stepfather was not a fugitive on the run when he was arrested because the couple did not move to Michigan so that he could avoid a warrant but rather to escape harassment by her family. Id. at 70. Therefore, Stepfather has not shown prejudice.

[19] In short, the trial court did not abuse its discretion in concluding that Stepfather failed to show good cause for a continuance, and even if that had been an abuse of discretion, Stepfather has not demonstrated prejudice.

Stepfather also contends that the trial court's decision denying his request for a continuance violated his due process rights. He did not make that argument in the trial court, so it is waived. See A.S. v. Ind. Dep't of Child Servs. , ––– N.E.3d ––––, 2021 WL 3236340, at *2 (Ind. Ct. App. July 30, 2021) ("Because Mother did not present her due process argument to the trial court, this argument is waived for purposes of appeal."). In any event, the trial court's reasonable exercise of discretion to determine that Stepfather had not demonstrated good cause to reschedule the hearing for the third time did not violate Stepfather's due process rights, especially where Stepfather has not identified any prejudice. Id. ("In balancing Mother's fundamental interest against the State's own compelling interest and given the minimal risk of error from the trial court's decision to proceed in Mother's absence because counsel represented Mother, the trial court did not violate Mother's right to due process in denying her counsel's motion to continue the fact-finding hearing.").

[20] Affirmed.

Vaidik, J., and May, J., concur.


Summaries of

B.E. v. Ind. Dep't of Child Servs. (In re M.R.F.)

Court of Appeals of Indiana.
Nov 17, 2021
178 N.E.3d 835 (Ind. App. 2021)
Case details for

B.E. v. Ind. Dep't of Child Servs. (In re M.R.F.)

Case Details

Full title:In the MATTER OF M.R.F. and A.T.B., Children in Need of Services, B.E.…

Court:Court of Appeals of Indiana.

Date published: Nov 17, 2021

Citations

178 N.E.3d 835 (Ind. App. 2021)