In the Matter of the Term. of the Parent-Child Relationship of J.E., and K.E. v. The Ind. Dept. of Child Services
2015 Ind. App. LEXIS 721
| Ind. Ct. App. | 2015Background
- Father (K.E.) was incarcerated on felony charges and had limited contact with his son J.E.; J.E. was removed from parents shortly after birth and placed in foster care.
- Father was ordered in a CHINS proceeding to complete services and supervised visitation but failed to participate and had only two visits total.
- DCS filed a petition to terminate parental rights in October 2014; after service issues and continuances, the termination factfinding hearing was set while Father remained incarcerated.
- Father (through counsel) moved for a continuance until his projected July 2015 release and separately moved for an order to transport him from the correctional facility to court; the trial court denied both motions and allowed Father to participate telephonically (after a failed video option).
- The trial court terminated Father’s parental rights; Father appealed, challenging only denial of the continuance and denial of the transport order.
Issues
| Issue | Father’s Argument | DCS’s Argument | Held |
|---|---|---|---|
| Whether denial of continuance violated due process | Denial deprived Father of meaningful opportunity to participate; needed physical presence after release to assist counsel | Continuance not required; counsel was present, Father contacted by phone, and Father failed to show prejudice | Denial was within trial court discretion; no prejudice shown and due process satisfied |
| Whether denial of transport order abused discretion | Physical presence was necessary for credibility and to resolve dispute about notice of services | Trial court balanced factors from In re C.G.; alternate means (telephone) adequate and transport costly/inconvenient | Denial was within discretion; court considered C.G. factors and telephone participation was sufficient |
Key Cases Cited
- J.P. v. G.M., 14 N.E.3d 786 (Ind. Ct. App. 2014) (standard for reviewing continuance denial)
- Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615 (Ind. Ct. App. 2006) (continuance abuse-of-discretion and prejudice requirement)
- In re C.G., 954 N.E.2d 910 (Ind. 2011) (factors for deciding whether to transport an incarcerated parent)
- Ungar v. Sarafite, 376 U.S. 575 (1964) (due process analysis for continuance requests)
- In re K.W., 12 N.E.3d 241 (Ind. 2014) (no absolute right to physical presence at termination hearing)
- In re B.D.J., 728 N.E.2d 195 (Ind. Ct. App. 2000) (termination law does not require DCS to offer services to correct parental deficiencies)