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 APPELLANT: ATTORNEYS FOR APPELLEE:

TERI A. FLORY GREGORY F. ZOELLER

Flory and Smith Attorney General of Indiana

Lafayette, Indiana

ROBERT J. HENKE

DAVID E. COREY

Deputies Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN RE THE MATTER OF THE TERMINATION )

OF THE PARENT-CHILD RELATIONSHIP )

OF L.T.W.B., Minor Child, and S.A.B., Mother, )

and H.L.B., Father, )

)

H.L.B., Father, )

)

Appellant-Respondent, )

)

vs. ) No. 79A02-1307-JT-669

)

THE INDIANA DEPARTMENT OF CHILD )

SERVICES, )

)

Appellee-Petitioner. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT

The Honorable Faith A. Graham, Judge

The Honorable Crystal A. Sanders, Magistrate

Cause No. 79D03-1303-JT-24

February 20, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
2

H.L.B. (Father) appeals the involuntary termination of his parental rights to L.T.W.B. 

(Child). He argues the trial court abused its discretion when it denied his motion to continue. 

We affirm. 

FACTS AND PROCEDURAL HISTORY1

Child was born on April 27, 2012, to S.A.B.2(Mother) and Father. The Department of 

Child Services (DCS) became involved with the family because Mother left the hospital 

without the Child after Child’s birth and her whereabouts became unknown. Father visited 

Child in the hospital, and was advised DCS was investigating Mother’s whereabouts. Father 

submitted to a drug test at that time, and it came back positive for THC, a chemical found in 

marijuana. On May 2, DCS filed a petition to declare Child a Child in Need of Services 

(CHINS) based on Mother’s abandonment of Child, Father’s positive drug screen, the 

presence of cocaine in Child’s meconium at birth, Mother’s lack of prenatal care, and 

Mother’s use of drugs three days prior to Child’s birth.

On June 15, the juvenile court adjudicated Child a CHINS and ordered Father to 

refrain from the use of illegal drugs and alcohol, attend all court hearings, obtain and 

maintain safe housing, obtain and maintain a legal and stable source of income, obey the law, 

 

1 The record on appeal in this case was prepared pursuant to the Indiana Supreme Court’s “Order Establishing 

the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record on Appeal” issued 

on September 18, 2012, and effective on July 1, 2012. See Ind. Supreme Court Case No. 94S00-1209-MS522. Therefore, the citations to the transcript will be to the “A/V Rec.” We acknowledge the ongoing 

cooperation of the Honorable Faith A. Graham of the Tippecanoe Superior Court and parties’ counsel in the 

execution of this pilot project.

2 Mother does not participate in this appeal, and we therefore provide facts regarding Mother only as necessary 

to address Father’s arguments.
3

participate in substance abuse assessments and follow all recommendations, participate in 

mental health assessments and follow all recommendations, participate in parenting 

assessments and follow all recommendations, submit to random drug screens, participate in 

visitation with Child, and participate in home-based therapy. Father completed the required 

assessments, but he did not complete any of the services recommended based on those 

assessments. He participated in visitation with Child during May 2012, but he did not see 

Child thereafter. Father was arrested once and convicted twice during the course of the 

proceedings, he tested positive for cocaine, admitted to using cocaine, and admitted to 

abusing alcohol.

On March 6, 2013, DCS filed a petition to involuntarily terminate Father’s parental 

rights. The juvenile court held a hearing the same day and appointed counsel for Father. On 

May 6, Father filed a motion to continue the fact-finding hearing scheduled for May 28 based 

on a conflict on his counsel’s calendar. In that same motion, Father acknowledged the court 

had discretion to appoint him different counsel in lieu of continuing the case. On May 8, the 

juvenile court denied Father’s motion to continue and appointed him new counsel. Father did 

not request another continuance, and his counsel participated in the May 28 hearing. On July 

2, the juvenile court issued its order involuntarily terminating Father’s parental rights.

DISCUSSION AND DECISION

“The traditional right of parents to establish a home and raise their children is 

protected by the Fourteenth Amendment of the United States Constitution.” In re M.B., 666 

N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. The right to raise one’s own child should 
4

not be terminated solely because there is a better home available for the child, but parental 

rights may be terminated when a parent is unable or unwilling to meet his or her parental 

responsibilities. In re K.S., 750 N.E.2d 832, 836-37 (Ind. Ct. App. 2001).

Father alleges the trial court abused its discretion when it denied his May 6, 2013, 

motion to continue. The decision to grant or deny a continuance rests within the sound 

discretion of the juvenile court. Rowlett v. Vanderburgh Cnty. Office of Family & Children,

841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. We will reverse the court’s 

decision only for an abuse of that discretion. Id. An abuse of discretion occurs when the 

party requesting the continuance has shown good cause for granting the motion and the 

juvenile court denies it. Id. No abuse of discretion will be found when the moving party is 

not prejudiced by the denial of its motion. Id. 

Failure to raise an issue before the juvenile court constitutes waiver of that issue on 

appeal. Runkel v. Miami County DCS, 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. 

denied. “In order to properly preserve an issue on appeal, a party must, at a minimum, ‘show 

that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before

seeking an opinion on appeal.’” Id. Waiver based on failure to raise an issue before the 

lower court applies to issues which may have constitutional implications. Hite v. 

Vanderburgh Cnty. OFC, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006). 

Father asked for a continuance based on counsel’s unavailability on the hearing date, 

but his motion also asserted: “In the alternative, as this is an appointed case, the Court has 

the discretion to appoint a different attorney to handle this matter.” (App. at 15.) The 
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juvenile court denied the motion to continue and appointed new counsel. Between May 8 

and the hearing date, May 28, Father did not request another continuance. Nor did he request 

a continuance at the hearing. See A/V Rec. 8:41:00-:10 (court asked if there were any 

preliminary matters and Father indicated there were not). Therefore, the issue is waived 

because Father did not present it to the juvenile court. Waiver notwithstanding, there was no 

abuse of discretion.

Father argues the juvenile court abused its discretion when it denied his May 6, 2013, 

motion to continue because his new counsel, who was appointed at his request and as part of 

the juvenile court’s May 8 order, did not have ample time to “become familiar with all 

aspects of a year-long case, which included multiple reports, orders, and filings.” (Br. of 

Appellant at 12.) However, Father does not indicate how he was prejudiced by counsel’s 

short time to prepare for the fact-finding hearing. There was overwhelming evidence 

supporting the involuntary termination of Father’s rights - he had failed multiple drug 

screens, refused to participate in services and visitation, and been arrested twice during the 

proceedings. Additionally, Father does not allege there were witnesses that should have been 

called on his behalf or testimony that should have been presented. Father’s counsel crossexamined all witnesses during the fact-finding hearing and offered a closing statement giving 

reasons why termination was not appropriate. Therefore, we cannot say the juvenile court 

abused its discretion when it denied his motion to continue. See Fink v. State, 469 N.E.2d 

466, 470 (Ind. Ct. App. 1984) (no abuse of discretion when Fink showed no prejudice 

resulting from denial of his request for a continuance in order that a new attorney might 
6

prepare his defense), on reh’g, 471 N.E.2d 1161 (Ind. Ct. App. 1984).

3

Affirmed.

KIRSCH, J., and BRADFORD, J., concur.

 

3 As Father has not demonstrated he was prejudiced by the denial of his motion to continue, he has also not 

demonstrated his due process rights were violated.