MEMORANDUM DECISION

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 APPELLANTS

Daniel L. Askren

O’Connor and Askren Law Office

Attica, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

James D. Boyer

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of M.C. (Minor Child), 

and 

K.P. (Mother) and C.C. (Father),

Appellants-Respondents,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

September 18, 2015

Court of Appeals Case No.

23A04-1503-JT-114

Appeal from the Fountain Circuit 

Court

The Honorable Susan Orr 

Henderson, Judge

Trial Court Cause No.

23C01-1411-JT-170

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Crone, Judge.

Case Summary

[1] K.P. (“Mother”) and C.C. (“Father”) (collectively “Parents”) appeal the trial 

court’s termination of their parental relationship with their daughter M.C. 

They challenge the trial court’s denial of their oral motion for continuance on 

the day of the final hearing. They also submit that the trial court erred in 

determining that there is a reasonable probability that the conditions that led to 

M.C.’s removal will not be remedied. Finding that the trial court acted within 

its discretion in denying Parents’ last-minute motion for continuance and that

the trial court did not clearly err in determining that there is a reasonable 

probability that conditions would not be remedied, we affirm. 

Facts and Procedural History

[2] M.C. was born to Parents out of wedlock on February 27, 2013, and Father’s 

paternity was legally established. In August 2013, she was admitted to Riley 

Hospital due to medical neglect and failure to thrive. Photographic exhibits 

and hospital records indicate that she was emaciated, malnourished, and 

lethargic, had insect bites all over her face, had a foul odor, and could not move 

or lift her head. Medical records indicate that she lost two pounds from June to 

August 2013. The Department of Child Services (“DCS”) removed her from 

Parents’ care and placed her with her maternal grandfather (“Grandfather”) and 

step-grandmother (collectively “Grandparents”) upon her release from the 

hospital. 

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[3] On August 26, 2013, DCS filed a petition seeking to have M.C. designated a 

child in need of services (“CHINS”), and Parents denied the CHINS allegations 

at a detention hearing held the same day. Factfinding and dispositional 

hearings followed, and the trial court designated M.C. a CHINS. Parents failed 

to appear at the November 2013 dispositional hearing, and joint counsel

appeared on their behalf. The trial court subsequently issued a permanency 

order with concurrent plans of reunification with Parents and guardianship for 

Grandparents. The court ordered Father to participate in couples counseling, 

individual counseling, and supervised visitation. The court ordered Mother to 

participate in mental health and parenting assessments, case management, 

visitation, and couples counseling. Mother was arrested and incarcerated twice 

during the pendency of the CHINS case.

[4] In November 2014, DCS filed a petition to terminate Parents’ relationship with 

M.C. The trial court held a periodic review hearing in early December. 

Parents were present when the trial court set the final hearing date of February 

5, 2015. The trial court found that Parents had not fully complied with the case 

plan, had not cooperated with DCS, and had not alleviated the cause of M.C.’s 

removal or supervision. DCS ordered additional services for Father, including 

a parenting assessment followed by referrals for home-based case management 

and individual counseling to address his substance abuse and stress issues. 

DCS also referred Mother for individual therapy to address issues such as her 

substance abuse, conflict resolution, and stress management. 

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[5] Parents did not attend the February 5, 2015 termination hearing but were 

represented by counsel. At the outset of the 9:00 a.m. hearing, counsel 

requested a continuance based on Parents’ absence. Court personnel notified 

the trial court that Mother had called the court at 8:00 a.m. and indicated that 

she and Father were running late due to road conditions. At 9:15 a.m., the trial 

court acknowledged the road conditions, denied the request for continuance,

and proceeded with the witnesses who were present. Parents never appeared. 

Counsel renewed Parents’ continuance motion at the close of the hearing, and 

the trial court denied it.

[6] Based on the evidence, the trial court concluded that it is in M.C.’s best

interests that Parents’ rights be terminated and that she be adopted by 

Grandfather. The trial court issued an order containing findings of fact and 

conclusions thereon terminating the parent-child relationship. Parents now 

appeal. Additional facts will be provided as necessary. 

Discussion and Decision

Section 1 – The trial court acted within its discretion in 

denying Parents’ last-minute oral motion for 

continuance.

[7] Parents challenge the trial court’s denial of their oral motion for continuance 

made by counsel at the February 2015 termination hearing when they failed to 

appear. The decision to grant or deny a motion for continuance is within the 

sound discretion of the trial court. J.P. v. G.M., 14 N.E.3d 786, 789 (Ind. Ct. 

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App. 2014). We will reverse only for an abuse of that discretion. Rowlett v. 

Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 

2005), trans. denied (2006). An abuse of discretion occurs where the trial court 

reaches a conclusion that is clearly against the logic and effect of the facts or the 

reasonable and probable deductions that may be drawn therefrom. J.P., 14 

N.E.3d at 790. Where the trial court denies a motion for continuance, an abuse 

of discretion will be found if the moving party has demonstrated good cause for 

granting the motion. Rowlett, 841 N.E.2d at 619; see also Ind. Trial Rule 53.5 

(stating that trial court has discretion to grant continuance on motion and 

continuance “shall be allowed upon a showing of good cause established by 

affidavit or other evidence.”). No abuse of discretion will be found where the 

moving party has not shown that he was prejudiced by the denial of his 

continuance motion. J.P., 14 N.E.3d at 790.

[8] Parents characterize the denial of their motion for continuance as a denial of 

their due process rights. When the State seeks to terminate parental rights, it 

must do so in a fundamentally fair manner that meets due process

requirements. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). Due process affords 

parents the opportunity to be heard at a meaningful time and in a meaningful 

manner. Id. The United States Supreme Court addressed the due process 

requirement in connection with requests for continuance in Ungar v. Sarafite, 

376 U.S. 575, 589-90 (1964), reasoning,

The matter of continuance is traditionally within the discretion of 

the trial judge, and it is not every denial of a request for more 

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time that violates due process even if the party fails to offer 

evidence or is compelled to defend without counsel. Contrawise, 

a myopic insistence upon expeditiousness in the face of a 

justifiable request for delay can render the right to defend with 

counsel an empty formality. There 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.

[9] Ungar specifically addressed a request for continuance to engage counsel. Id. 

Here, counsel attended the hearing but Parents did not. The transcript indicates 

that Mother contacted the court one hour before the scheduled start time and 

indicated that she and Father would be late due to weather conditions. The 

trial court acknowledged the road conditions but allowed counsel to proceed in 

questioning witnesses and presenting evidence on behalf of Parents, who failed

to appear at all. Grandfather, who testified that he lived in the same 

community as Parents,

1 told the court that the roads were in drivable condition 

and that he had no problem getting to the hearing. Tr. at 115. This sentiment 

was echoed by others present in the courtroom. In denying Parents’ motion for 

continuance, the trial court found as follows: 

Parents were in court on Dec. 2, 2014 when said hearing date 

was set. Parents have not maintained contact with their counsel. 

Counsel, on behalf of their client, each move the court for a 

1

 The record indicates that Mother and Father both changed housing arrangements several time during the 

pendency of the proceedings. Grandparents lived in Newport. Mother lived in Newport at one point in 

January 2015. Of the surrounding towns in which Mother and Father had lived, none was more than 22 

miles from the court, and each was adjacent to a U.S. highway. 

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continuance of the hearing. No cause was shown to the court 

why the parents failed to appear and motion for continuance is 

denied. 

Appellants’ App. at 12. 

[10] We agree that Parents failed to demonstrate good cause for missing the hearing. 

We note that Father has a history of failing to appear, having been arrested on a 

failure to appear warrant in connection with his 2014 domestic battery charge, 

and that Parents previously failed to appear for a 2013 CHINS hearing and 

were represented by counsel. As for the termination hearing, the only message 

that the trial court received was Mother’s 8:00 a.m. phone message stating that 

she and Father were running late due to bad weather. However, the weather 

did not prevent counsel, other witnesses, the trial court, or court personnel from 

attending, and Mother’s phone message to court personnel indicated that they

would merely be late and presumably were on their way. The hearing actually 

started at 9:15 a.m. The 122-page transcript indicates that there was at least one 

recess and that the hearing was long enough to have afforded Parents the time 

to travel the approximately twenty miles on roads that witnesses and counsel 

had described as drivable. As such, the record was not closed before Parents

had an opportunity to arrive and be heard. Moreover, Parents’ failure to 

maintain contact with counsel for the weeks preceding the hearing shows that 

they had little interest in assisting in the preparation and presentation of their 

case. Nevertheless, counsel attended the hearing and questioned witnesses on 

their behalf. In short, Parents were not deprived of fundamental fairness in the 

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presentation of their case. Based on the foregoing, we find no abuse of

discretion in the trial court’s denial of counsel’s last-minute request for 

continuance. 

Section 2 – The trial court did not clearly err in 

determining that there is a reasonable probability that 

the conditions leading to M.C.’s removal will not be 

remedied.

[11] Parents challenge the sufficiency of evidence supporting the trial court’s 

judgment terminating their parental relationship with M.C. When reviewing a 

trial court’s findings of fact and conclusions thereon in a case involving the 

termination of parental rights, we first determine whether the evidence supports 

the findings and then whether the findings support the judgment. In re E.M., 4

N.E.3d 636, 642 (Ind. 2014). We will set aside the trial court’s judgment only if 

it is clearly erroneous. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 

143, 147 (Ind. 2005). We neither reweigh evidence nor judge witness 

credibility. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied. 

Rather, we consider only the evidence and inferences most favorable to the 

judgment. Id. 

[12] In Bester, our supreme court stated,

The Fourteenth Amendment to the United States Constitution 

protects the traditional right of parents to establish a home and 

raise their children. A parent’s interest in the care, custody, and 

control of his or her children is perhaps the oldest of the 

fundamental liberty interests. Indeed the parent-child 

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relationship is one of the most valued relationships in our culture. 

We recognize of course that parental interests are not absolute 

and must be subordinated to the child’s interests in determining 

the proper disposition of a petition to terminate parental rights. 

Thus, parental rights may be terminated when the parents are 

unable or unwilling to meet their parental responsibilities. 

839 N.E.2d at 147 (citations, quotation marks, and alteration omitted). 

[13] To obtain a termination of the parent-child relationship between Parents and 

M.C., DCS was required to establish in pertinent part:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) 

months under a dispositional decree.

....

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions 

that resulted in the child’s removal or the reasons for 

placement outside the home of the parents will not be 

remedied.

(ii) There is a reasonable probability that the continuation 

of the parent-child relationship poses a threat to the wellbeing of the child.

(iii) The child has, on two (2) separate occasions, been 

adjudicated a child in need of services;

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(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of 

the child. 

Ind. Code § 31-35-2-4(b)(2). 

[14] In recognition of the seriousness with which we address parental termination 

cases, Indiana has adopted a clear and convincing evidence standard. Ind. 

Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367, 

377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need 

not reveal that the continued custody of the parents is wholly inadequate for the 

child’s very survival. Rather, it is sufficient to show by clear and convincing 

evidence that the child’s emotional and physical development are threatened by 

the respondent parent’s custody.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 

2013) (citation omitted).

[15] Here, Parents challenge only the trial court’s determination that there is a 

reasonable probability that the conditions that led to M.C.’s removal will not be 

remedied. As such, we need not address the other statutory elements. When 

assessing whether there is a reasonable probability that conditions that led to a 

child’s removal will not be remedied, we must consider not only the initial basis 

for the child’s removal but also the bases for continued placement outside the 

home. A.I., 825 N.E.2d at 806. Moreover, “the trial court should judge a 

parent’s fitness to care for [her] children at the time of the termination hearing, 

taking into consideration evidence of changed conditions.” In re J.T., 742 

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N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. “Due to the permanent 

effect of termination, the trial court also must evaluate the parent’s habitual 

patterns of conduct to determine the probability of future neglect or deprivation 

of the child.” Id. For example, the court may properly consider evidence of a 

parent’s substance abuse, criminal history, lack of employment or adequate 

housing, history of neglect, and failure to provide support. McBride v. Monroe 

Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). In 

making its case, “DCS need not rule out all possibilities of change; rather, [it] 

need establish only that there is a reasonable probability that the parent’s 

behavior will not change.” In re Kay.L., 867 N.E.2d 236, 242 (Ind. Ct. App. 

2007). 

[16] Here, the trial court issued extensive findings of fact, and Parents have not 

specifically challenged any of those findings. Instead, they make general 

assertions referencing their early participation in services aimed toward 

reunification. As such, we are left to determine whether the unchallenged 

findings support the judgment. As they concern the reasonable probability of 

remedied conditions, the unchallenged findings include the following:2

3. There is clear and convincing evidence that a reasonable 

probability that the conditions that resulted in the removal of the 

2

 To the extent that the trial court’s findings refer to Parents and M.C. by name, we have altered those 

references accordingly. 

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child[] from the home will not be remedied. The court bases its 

findings on the following factors:

a. The family became involved with Fountain County [DCS]

as a result of an allegation of abuse and neglect of the child 

after her admission to Riley Hospital in August of 2013. 

The child was born on Feb. 27, 2013 and was admitted to 

Riley Hospital at 6 months of age to determine why she 

was losing weight. The assessment officer, Sonja Janssen 

Luper, testified that her observations of the child showed 

an infant with no body fat and emaciated; she was 

lethargic and unable to raise her head. She had a foul 

smell and her clothing was dirty. Photographs admitted as 

DCS Ex. 2-5 accurately confirm those observations. The 

child was clearly failing to thrive under her Parents[

’

] care 

and was in serious medical condition. She appeared 

covered in insect bites on her head and face.

b. The child was adjudicated a CHINS on Oct. 10, 2013. 

Parents were not married but DNA testing conducted 

while case was pending established Father as M.C.’s father 

and legal paternity was established. The dispositional 

decree entered on Nov. 13, 2013 ordered the Parents to 

participate in services. Mother was ordered to participate 

in a mental health assessment and parenting assessment 

and comply with recommendations thereof; case 

management; supervised visits and couple’s counseling. 

Father was ordered to participate in individual and couples 

counseling as well as supervised visits. 

c. After child was adjudicated a CHINS and before services 

could be put in place, parents relocated from Fountain 

County to northern Indiana. Mother was arrested and 

prosecuted in Vermillion County Indiana for check 

deception. Father returned to his [m]other’s home in 

Kingman, Indiana. Mother remained jailed from 

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immediately after disposition until Feb. 27, 2014. Upon 

her release from incarceration, Mother engaged in services 

and completed the mental health and parenting 

assessments; participated in supervised visits and 

commenced couples counseling. Father participated in the 

Fatherhood Engagement, substance abuse treatment and 

supervised visits. Generally from Feb. 2014 to the review 

hearing on May 15, 2014 parents were compliant with 

services and working toward the goal of reunification. 

Child was thriving in relative care, gaining weight and 

starting to reach appropriate development goals.

d. Parents were unable to sustain their relationship and both 

were arrested for Battery/Domestic Battery in July of 

2014. Mother was arrested for probation violation for the 

check deception charges and remained in jail on both the 

probation violation and the battery charges until sometime 

in Nov. 2014. Parents continued to struggle with 

substance abuse issues, but for the vast majority of screens 

obtained, Mother remained clean. Father had more failed 

screens and was not compliant with the court’s order to 

participate in random screens. Parents generally 

participated in supervised visits and had moved to semisupervised during the Spring/Summer of 2014. Parents 

were no longer living with one another and it was 

anticipated that the child would be going to Mother’s for a 

trial home visit. This goal was not reached after Mother 

was re-arrested.

e. Father also was charged as a result of the July incident and 

failed to appear in court when ordered to do so. He was 

arrested on a failure to appear warrant and the court is 

uncertain when he was released from jail. During 

mother’s period of incarceration, Father lived with his 

mother, moved into a trailer, moved back to his mother’s 

and did not maintain stable housing. Father participated 

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in services with the Fatherhood Engagement, but was not 

invested in the benefits of individual therapy and that 

service[] was discontinued. From the Fall into winter of 

2014 Father missed 3 visits with the child and since Dec. 

2014 has not seen the child at all. Father was ordered to

provide proof of employment and submit a budget to 

DCS. He has failed to do so. Father’s ability to maintain 

a job is uncertain as he has fail[ed] to provide DCS with 

his employment information;

f. Upon Mother’s release from jail, she live[d] with her 

grandmother until a few weeks of this hearing. Mother 

was hospitalized on what was reported to be an overdose 

of some drug and was not allowed to return to 

grandmother’s home upon her release from the hospital. 

Mother’s whereabouts are currently unknown. Although 

Mother was incarcerated during a large period of time 

while this case was pending, her initial compliance with 

services were indicative of her level of commitment for 

reunification. However, following her release from 

incarceration in Nov. 2014 she has not demonstrated any 

interest or willingness to re-engage in services or 

participate in visits with the child; 

g. Despite initial compliance and efforts to cooperate and 

participate in services, the parents have been unable to 

sustain progress to effectuate a reunification. Based on 

parents’ lack of cooperation, their failure to maintain 

contact with service providers and demonstrated lack of 

involvement in this case since Nov. 2014 indicates to the 

court continuing to offer services would be ineffectual[];

h. .... Parents have been unable to sustain employment, 

suitable housing, or a drug free lifestyle. These are 

ongoing problems and do not appear that any 

improvement in their circumstances will be happening in 

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the near future. The child has been in [and] out of home 

placement for seventeen months and needs a permanent 

and stable home[.]

Appellants’ App. at 13-15.

[17] The initial basis for removal, medical neglect, is depicted in startling 

photographic exhibits showing M.C.’s emaciated, bony frame, hanging skin on 

her legs, and numerous insect bites on her face and head. Petitioner’s Exs. 2-5.

The listless six-month-old baby had lost two pounds from her already tiny 

frame and could not lift her head. She eventually needed leg braces and began 

to show progress after she was placed with Grandparents. The trial court’s 

unchallenged findings emphasize Mother’s and Father’s individual inability to 

sustain progress due to their own instability in housing and employment as well 

as their failure to avoid drug use and other criminal conduct. We are sensitive 

to situations in which a parent’s incarceration hinders participation in services 

but note that when Mother was released after her second stint of incarceration, 

she did not resume services. She briefly resumed visits with M.C. after her 

release but did not visit her at all for several weeks leading up to the final 

hearing. Sadly, Mother instead resumed her drug use and was briefly 

hospitalized due to an overdose. Likewise, Father did not avail himself of 

visitation in the weeks preceding the termination hearing. As with services, 

Parents failed to earnestly commit to consistent visitation with M.C. See Lang v. 

Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) 

(failure to exercise right to visit one’s children demonstrates lack of 

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commitment to complete actions necessary to preserve parent-child 

relationship), trans. denied. 

[18] In sum, M.C. was in serious physical jeopardy when she arrived at Riley 

Hospital and was removed from Parents’ care. Although Parents initially took 

steps toward reunification with her, they could not sustain their progress due to 

their own instabilities and patterns of destructive conduct. In other words, they 

could not maintain a consistent positive relationship with M.C. because they 

could not maintain consistent positive patterns in their own lives. “[A] trial 

court need not wait until a child is irreversibly influenced by a deficient lifestyle 

such that his or her physical, mental, and social growth is permanently 

impaired before terminating the parent-child relationship.” Castro, 842 N.E.2d 

at 372. The trial court did not clearly err in determining that there is a 

reasonable probability that the conditions that led to M.C.’s removal will not be 

remedied. Accordingly, we affirm its termination order.

[19] Affirmed.

May, J., and Bradford, J., concur.

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