CHINS: C E v. Indiana Department of Child Services
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Opinion
FILED Jan 31 2024, 8:56 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT- ATTORNEYS FOR APPELLEE MOTHER Theodore E. Rokita Kay A. Beehler Attorney General of Indiana Terre Haute, Indiana Monika Prekopa Talbot Deputy Attorney General ATTORNEY FOR APPELLANT- Indianapolis, Indiana FATHER Michael G. Moore Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of N.E., Minor January 31, 2024 Child Alleged to be a Child in Court of Appeals Case No. Need of Services; 23A-JC-996 C.E. (Mother) and S.E. (Father), Appeal from the Vigo Circuit Court Appellants-Respondents, The Honorable Lakshmi B. Reddy, v. Special Judge Trial Court Cause No. Indiana Department of Child 84C01-2212-JC-1185 Services, Appellee-Petitioner.
Opinion by Judge Tavitas Judges Pyle and Foley concur.
Tavitas, Judge.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 1 of 42 Case Summary [1] The Department of Child Services (“DCS”) filed a petition alleging that N.E.,
the child of C.E. (“Mother”) and S.E. (“Father”) (collectively, “Parents”), was
a child in need of services (“CHINS”), and the trial court granted the petition.
Parents appealed the trial court’s CHINS adjudication, and the adjudication
was reversed on appeal. DCS then filed a second CHINS petition. The trial
court again found that N.E. is a CHINS and also found Parents in contempt.
[2] In this consolidated appeal, Mother argues that: (1) the second CHINS petition
was barred by res judicata; (2) Mother’s due process rights were violated; (3) the
trial court abused its discretion by considering child hearsay; and (4) the
evidence does not support a finding that N.E. is a CHINS. Father argues: (1)
the second CHINS petition was barred by res judicata; (2) the trial court
committed fundamental error by admitting certain evidence; (3) the evidence
does not support a finding that N.E. is a CHINS; and (4) the trial court erred by
finding Father in contempt. We disagree with Parents’ arguments except for
Father’s arguments regarding the contempt finding. Accordingly, we affirm in
part and reverse in part.
Issues [3] Parents raise numerous issues, which we consolidate and restate as:
I. Whether the second CHINS petition was barred by res judicata.
II. Whether Mother’s due process rights were violated.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 2 of 42 III. Whether the trial court abused its discretion or committed fundamental error by admitting certain evidence.
IV. Whether the evidence is sufficient to sustain the trial court’s finding that N.E. is a CHINS.
V. Whether the trial court erred by finding Father in contempt.
Facts [4] Mother and Father have one child together, N.E., who was born in January
2021. Mother has two other biological children, F.C. and D.T. 1, and Father
has four other biological children, including M.E. Several of these children
have been the subject of CHINS petitions, and Parents have a history of
hostility toward DCS and failure to cooperate with DCS. This particular case
concerns only N.E.’s status as a CHINS.
[5] On October 14, 2021, DCS filed a petition alleging that N.E. was a CHINS
(“First Petition”). DCS alleged that Parents were involved in an “argument
and/or domestic violence incident” during which N.E. was in Mother’s arms.
Ex. Vol. VIII p. 209. Parents left N.E. in the care of a neighbor while Parents
allegedly went to the hospital. When a stranger arrived at the neighbor’s house
to take N.E., the neighbor contacted law enforcement. Law enforcement
1 D.T.’s father has custody of him.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 3 of 42 discovered that Parents’ residence did not have functioning toilets, electricity,
or water, and was extremely cluttered. DCS was unable to locate Parents and,
thereafter, removed N.E.
[6] Shortly after N.E. was removed from Parents’ care, DCS also removed F.C.
from Mother’s and F.C.’s father’s care. DCS filed a petition alleging that F.C.
was a CHINS due to Mother’s intoxication and the fact that F.C.’s father was
homeless. As part of these proceedings, Parents refused to participate in drug
screens. The trial court adjudicated both N.E. and F.C. as CHINS on
December 13, 2021, and issued a dispositional order on January 13, 2022.
Parents appealed this determination.
[7] During the pendency of the appeal, Parents did not comply with court-ordered
services and did not begin visiting N.E. until April 2022. Even after Parents
began attending the supervised visits, they participated inconsistently. Parents
often appeared late or did not appear at all for the visits. On one occasion,
Father brought a large hunting knife and a “set of nunchucks” 2 to a visit. Tr.
Vol. III p. 155. On another occasion, Parents argued during the visit, which
upset the children, and the children hid under a table. In November and
December 2022, Father smelled of marijuana during visits. Father often argued
with visitation supervisors and behaved aggressively and erratically.
2 Nunchucks are “a weapon that consists of two sticks joined by a short length of cord, chain, or rawhide.” https://www.merriam-webster.com/dictionary/nunchuck [https://perma.cc/XDB3-HB98] (last visited Jan. 8, 2024).
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 4 of 42 Ultimately, multiple supervised visitation providers refused to work with
Parents further. Additionally, Parents refused to participate in other services
offered by DCS.
[8] In April 2022, DCS filed a petition alleging that Father’s four-year-old child,
M.E., was a CHINS. 3 DCS alleged, in part, that: (1) M.E. was living with
Parents; (2) M.E. had “unexplained bruises all over her body;” (3) the home
does not have running water and M.E. “had not been bathed in recent days or
weeks”; (4) M.E. reported that Father and Mother (M.E.’s stepmother) fight
verbally and physically; (5) M.E. reported that Mother “has choked her”; and
(6) M.E. “does not feel safe in Father’s home.” Ex. Vol. VIII p. 153. Parents
refused to open the door when DCS made multiple attempts to interview them
and view the residence.
[9] The trial court found M.E. to be a CHINS due, in part, to ongoing domestic
violence in the home of Parents. As part of the dispositional order in M.E.’s
CHINS case, the trial court ordered Parents, in part, to submit to random drug
screens, participate in a domestic violence assessment and programs, and allow
DCS to make announced and unannounced visits to the home. Parents,
3 M.E. was also the subject of CHINS petitions in 2017 and 2020.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 5 of 42 however, refused to participate in services except for supervised visitations, and
Mother participated only in a few months of home-based case work. 4
[10] On May 2, 2022, Mother filed a petition for dissolution of marriage and a
petition for a protection order. In the petition for a protection order, Mother
stated, under the penalties of perjury, that: (1) Father “would slap [her] in [her]
face, choke [her], and not let [her] out of the house;” (2) during sexual
intercourse, Father “started choking [her] so hard it broke blood vessels in [her]
Free access — add to your briefcase to read the full text and ask questions with AI
FILED Jan 31 2024, 8:56 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT- ATTORNEYS FOR APPELLEE MOTHER Theodore E. Rokita Kay A. Beehler Attorney General of Indiana Terre Haute, Indiana Monika Prekopa Talbot Deputy Attorney General ATTORNEY FOR APPELLANT- Indianapolis, Indiana FATHER Michael G. Moore Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of N.E., Minor January 31, 2024 Child Alleged to be a Child in Court of Appeals Case No. Need of Services; 23A-JC-996 C.E. (Mother) and S.E. (Father), Appeal from the Vigo Circuit Court Appellants-Respondents, The Honorable Lakshmi B. Reddy, v. Special Judge Trial Court Cause No. Indiana Department of Child 84C01-2212-JC-1185 Services, Appellee-Petitioner.
Opinion by Judge Tavitas Judges Pyle and Foley concur.
Tavitas, Judge.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 1 of 42 Case Summary [1] The Department of Child Services (“DCS”) filed a petition alleging that N.E.,
the child of C.E. (“Mother”) and S.E. (“Father”) (collectively, “Parents”), was
a child in need of services (“CHINS”), and the trial court granted the petition.
Parents appealed the trial court’s CHINS adjudication, and the adjudication
was reversed on appeal. DCS then filed a second CHINS petition. The trial
court again found that N.E. is a CHINS and also found Parents in contempt.
[2] In this consolidated appeal, Mother argues that: (1) the second CHINS petition
was barred by res judicata; (2) Mother’s due process rights were violated; (3) the
trial court abused its discretion by considering child hearsay; and (4) the
evidence does not support a finding that N.E. is a CHINS. Father argues: (1)
the second CHINS petition was barred by res judicata; (2) the trial court
committed fundamental error by admitting certain evidence; (3) the evidence
does not support a finding that N.E. is a CHINS; and (4) the trial court erred by
finding Father in contempt. We disagree with Parents’ arguments except for
Father’s arguments regarding the contempt finding. Accordingly, we affirm in
part and reverse in part.
Issues [3] Parents raise numerous issues, which we consolidate and restate as:
I. Whether the second CHINS petition was barred by res judicata.
II. Whether Mother’s due process rights were violated.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 2 of 42 III. Whether the trial court abused its discretion or committed fundamental error by admitting certain evidence.
IV. Whether the evidence is sufficient to sustain the trial court’s finding that N.E. is a CHINS.
V. Whether the trial court erred by finding Father in contempt.
Facts [4] Mother and Father have one child together, N.E., who was born in January
2021. Mother has two other biological children, F.C. and D.T. 1, and Father
has four other biological children, including M.E. Several of these children
have been the subject of CHINS petitions, and Parents have a history of
hostility toward DCS and failure to cooperate with DCS. This particular case
concerns only N.E.’s status as a CHINS.
[5] On October 14, 2021, DCS filed a petition alleging that N.E. was a CHINS
(“First Petition”). DCS alleged that Parents were involved in an “argument
and/or domestic violence incident” during which N.E. was in Mother’s arms.
Ex. Vol. VIII p. 209. Parents left N.E. in the care of a neighbor while Parents
allegedly went to the hospital. When a stranger arrived at the neighbor’s house
to take N.E., the neighbor contacted law enforcement. Law enforcement
1 D.T.’s father has custody of him.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 3 of 42 discovered that Parents’ residence did not have functioning toilets, electricity,
or water, and was extremely cluttered. DCS was unable to locate Parents and,
thereafter, removed N.E.
[6] Shortly after N.E. was removed from Parents’ care, DCS also removed F.C.
from Mother’s and F.C.’s father’s care. DCS filed a petition alleging that F.C.
was a CHINS due to Mother’s intoxication and the fact that F.C.’s father was
homeless. As part of these proceedings, Parents refused to participate in drug
screens. The trial court adjudicated both N.E. and F.C. as CHINS on
December 13, 2021, and issued a dispositional order on January 13, 2022.
Parents appealed this determination.
[7] During the pendency of the appeal, Parents did not comply with court-ordered
services and did not begin visiting N.E. until April 2022. Even after Parents
began attending the supervised visits, they participated inconsistently. Parents
often appeared late or did not appear at all for the visits. On one occasion,
Father brought a large hunting knife and a “set of nunchucks” 2 to a visit. Tr.
Vol. III p. 155. On another occasion, Parents argued during the visit, which
upset the children, and the children hid under a table. In November and
December 2022, Father smelled of marijuana during visits. Father often argued
with visitation supervisors and behaved aggressively and erratically.
2 Nunchucks are “a weapon that consists of two sticks joined by a short length of cord, chain, or rawhide.” https://www.merriam-webster.com/dictionary/nunchuck [https://perma.cc/XDB3-HB98] (last visited Jan. 8, 2024).
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 4 of 42 Ultimately, multiple supervised visitation providers refused to work with
Parents further. Additionally, Parents refused to participate in other services
offered by DCS.
[8] In April 2022, DCS filed a petition alleging that Father’s four-year-old child,
M.E., was a CHINS. 3 DCS alleged, in part, that: (1) M.E. was living with
Parents; (2) M.E. had “unexplained bruises all over her body;” (3) the home
does not have running water and M.E. “had not been bathed in recent days or
weeks”; (4) M.E. reported that Father and Mother (M.E.’s stepmother) fight
verbally and physically; (5) M.E. reported that Mother “has choked her”; and
(6) M.E. “does not feel safe in Father’s home.” Ex. Vol. VIII p. 153. Parents
refused to open the door when DCS made multiple attempts to interview them
and view the residence.
[9] The trial court found M.E. to be a CHINS due, in part, to ongoing domestic
violence in the home of Parents. As part of the dispositional order in M.E.’s
CHINS case, the trial court ordered Parents, in part, to submit to random drug
screens, participate in a domestic violence assessment and programs, and allow
DCS to make announced and unannounced visits to the home. Parents,
3 M.E. was also the subject of CHINS petitions in 2017 and 2020.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 5 of 42 however, refused to participate in services except for supervised visitations, and
Mother participated only in a few months of home-based case work. 4
[10] On May 2, 2022, Mother filed a petition for dissolution of marriage and a
petition for a protection order. In the petition for a protection order, Mother
stated, under the penalties of perjury, that: (1) Father “would slap [her] in [her]
face, choke [her], and not let [her] out of the house;” (2) during sexual
intercourse, Father “started choking [her] so hard it broke blood vessels in [her]
face;” (3) Father “left [her] tied up so long [she] urinated on [herself];” and (4)
while Mother was at a shelter, Father kept circling around the building waiting
for her to exit. Ex. Vol. VIII p. 61. The trial court granted Mother’s petition for
a protection order.
[11] On May 15, 2022, Mother was charged with battery, domestic battery, and
residential entry after she entered Father’s residence and battered Father and
two others. The trial court issued a no contact order, which ordered Mother to
have no contact with Father and the two others.
[12] On June 12, 2022, Mother requested that the dissolution petition and protection
order be dismissed. Mother claimed that the dissolution petition and protection
order were being “cited in a juvenile court case against [her]” and were
complicating “almost everything in our day to day lives.” Id. at 71, 73. Mother
4 Father and M.E.’s mother appealed the CHINS determination, and this Court affirmed. See In Matter of M.E., No. 22A-JC-2373 (Ind. Ct. App. June 28, 2023) (mem.).
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 6 of 42 stated that Parents “decided to work things out and go to [counseling].” Id. at
73. The trial court then dismissed the dissolution petition and protection order.
[13] On October 24, 2022, another panel of this Court reversed the First CHINS
determinations as to both N.E. and F.C. See In re N.E., 198 N.E.3d 384 (Ind.
Ct. App. 2022) (with J. Vaidik dissenting). As to N.E., the panel held:
DCS has not presented evidence that N.E. has been harmed or endangered because of Mother’s mental health or inadequacy of the family home. While Mother had a mental breakdown and the family home was found to be inadequate on October 13, 2021, these conditions were voluntarily and without court coercion remedied by the parties, and therefore they are insufficient to support a CHINS determination.
Id. at 392. As to F.C., the panel held: “Even if we are persuaded by DCS’s
allegation of Mother’s intoxication on this one occasion, DCS did not present
evidence that F.C. had been impacted in any way, let alone seriously
endangered.” Id. at 393. Further, F.C.’s father had arranged for adequate
housing. 5
[14] DCS did not seek rehearing or transfer. Rather, DCS filed a second CHINS
petition on December 7, 2022 (“Second Petition”). The Second Petition
alleged, in part, that the following occurred after N.E. was first found to be a
CHINS: (1) Mother and Father failed to participate in visitation with N.E. for
5 After the reversal of the CHINS finding, F.C.’s father apparently received custody of F.C.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 7 of 42 eight months; (2) once Parents began to participate in visitation with N.E. and
their other children, they were often late, missed visitations, failed to follow
rules of visitation, argued with and threatened visitation supervisors, and
appeared for visitation under the influence of substances; (3) in October 2022,
Father allegedly pointed a gun at a man 6; (4) in October 2022, Father and
maternal grandmother posted concerning matters on social media; (5) in May
2022, Mother allegedly broke into Father’s residence and assaulted Father and
two others, and Mother was charged with domestic battery, battery resulting in
bodily injury, and battery; (6) in May 2022, Mother filed a petition for
dissolution of marriage and requested a protection order due to concerning
domestic violence, which was granted; and (7) Parents have persistently failed
to comply with trial court orders in the CHINS cases of their other children.
[15] Mother and Father denied the allegations of the Second Petition, and Father
indicated that he intended to represent himself in the action. Mother, however,
requested an appointment of counsel. The trial court judge recused himself,
and a special judge was appointed to hear the Second Petition.
[16] Mother filed a motion to dismiss the Second Petition. Mother argued that the
Second Petition was barred under the “claim preclusion branch of the doctrine
of res judicata.” Appellants’ App. Vol. II p. 126. According to Mother, the
Second Petition was based upon evidence from “the flawed determination by
6 In October 2022, the Terre Haute Police Department received a report that Father harassed a man, drove by the man’s house repeatedly, threatened to kill the man, and pointed a firearm at the man.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 8 of 42 DCS and the trial court that parents’ actions in October 2021 endangered the
child in a manner requiring the coercive intervention of the court.” Id. at 127.
Mother requested that the trial court dismiss the Second Petition or,
alternatively, strike any allegations related to or flowing from the First Petition.
The trial court denied Mother’s motion to dismiss and found:
The second Petition filed by DCS on December 6, 2022, does contain new allegations of material fact which are separate from what was available to DCS at the [time] of the original fact finding hearing back in 2021. As such, the principle of res judicata does not apply and there is no basis to dismiss the Petition filed on December 6, 2022.
Mother also requests that the Court strike any allegations in the second Petition that are relating to or flowing from the October 2021 Petition. There is no basis to strike these allegations. “Evidence of a parents’ past involvement with DCS or the criminal justice system is usually relevant to the central question of a CHINS proceeding.” In re Eq.W[.], 124 N.E.3d [1201, 1210 (Ind. 2019)]. See also Indiana Code Section 31-34-12-5. While the allegations contained in the October 2021 Petition cannot be used as a basis for a CHINS finding regarding the second Petition, the allegations can be factored in to make a determination after the fact finding hearing. For this reason, Mother’s request to strike allegations is also denied.
Id. at 132-33.
[17] On January 25, 2023, Parents were evicted from their residence. The trial court
conducted a fact-finding hearing on the Second Petition on January 27, 2023,
February 1, 2023, and February 2, 2023. During Mother’s testimony, she
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 9 of 42 denied filling out or signing the petition for protection order, which contained
accusations of abuse by Father. Mother testified that DCS is “ruthless” and just
wants to take the children “so they can get their check or whatever bonus that
they want and they don’t care.” Tr. Vol. II p. 180. On February 2, 2023, the
trial court ordered Parents to participate in a hair and nail follicle drug test and
alcohol test by February 6, 2023.
[18] On February 14, 2023, the trial court issued extensive findings of fact and
conclusions thereon and determined that N.E. is a CHINS. On March 8, 2023,
the trial court entered a dispositional order. The trial court again ordered
Parents to submit to a hair follicle test.
[19] At the dispositional hearing, the Court Appointed Special Advocate (“CASA”)
testified that N.E. has a mass on her back that doubled in size during the fall of
2022. Doctors at Riley Children’s Hospital recommended that an MRI be
conducted under sedation to examine the mass. Parents, however, disputed the
necessity of an MRI and requested a second opinion. A second opinion was
obtained on March 14, 2023, and the second doctor also recommended an
MRI. Although Parents were informed of this second appointment, they did
not attend.
[20] On May 10, 2023, the trial court conducted a review hearing and a hearing
regarding N.E.’s medical issue. Parents did not appear at the hearing, but their
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 10 of 42 counsel were present. 7 As for N.E.’s medical matter, the trial court granted
DCS’s request for the MRI under sedation at Riley Children’s Hospital. DCS
reported that Parents had twice been ordered to submit to a hair follicle test but
had failed to do so. DCS requested that the trial court find Parents in contempt
of court. The trial court set the matter for a contempt hearing on May 31, 2023.
The trial court sent another referral for Parents to complete a hair follicle test.
[21] The trial court also issued an order regarding the review hearing on May 11,
2023:
The Court hereby holds [Parents] in contempt for violating Court Orders dated February 2nd and 27, 2023, instructing them to take hair follicle drug tests and for failing to appear for the hearing scheduled for May 10, 2023, which was not only a review hearing but a hearing to address a medical issue involving [N.E.]. A contempt hearing to impose sanctions is hereby scheduled for May 31, 2023, at 8:00 a.m. . . .
[ ] The Court has issued another Referral for Hair Follicle Drug Testing which permits the parties to take such test through May 30, 2023, giving them an opportunity to come within compliance prior to the contempt hearing. The parents are reminded that sanctions for a contempt finding may include monetary sanctions, community service and/or jail time.
[The] Court orders Mother and Father to obtain a 10[-]panel hair follicle drug test at Right Choice D.A.T. by no later than May 30,
7 Although Father was pro se during the fact-finding hearing, he was now represented by counsel.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 11 of 42 2023. A Referral Sheet is attached and the costs of the test will be paid for by the Department of Child Services.
Appellants’ Amended Consol. Suppl. App. Vol. II p. 14. 8
[22] Parents failed to complete the hair follicle test and did not appear for the May
31, 2023 hearing because they claimed that Mother was in the emergency room.
The trial court rescheduled the hearing for June 7, 2023.
[23] On June 7, 2023, Parents and their counsel appeared for the “rule to show
cause” hearing. Tr. Vol. VI p. 105. DCS reported that it still had not received
any hair follicle test results regarding Parents. Father and Mother both testified
that they went to the testing facility a few days earlier but that the referral had
expired. The trial court then stated:
I will also let the record reflect that prior to this hearing starting I had my court reporter call Right Choice D.A.T. to see if either party had taken a test or appeared and the response was no [Parents] had not appeared to take a test. So, court having already found them in contempt they are found in contempt for their failure to appear at the review hearing on May tenth (10th). Which was not only a review hearing but also a hearing to determine whether or not the court should authorize DCS . . . to proceed with an important medical procedure for their child. [T]hey didn’t appear for the contempt hearing scheduled last week but I understand [Mother] was in the hospital and they couldn’t show up. They’re also found in contempt [of] court
8 This Appendix was marked received by the Clerk’s office on September 25, 2023, but Parents failed to correct defects and the document was not filed. We will, however, consider the trial court’s orders which are available to us on Odyssey.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 12 of 42 because the court ordered a hair follicle drug screen on February first (1st), February twenty-seventh (27th), it was also in the order dated March eighth (8th) and then again most recently on or about May thirtieth (30th). Not only that they have not complied with the orders DCS . . . take their random drug screens or other procedures. Sanction is forty-five (45) days for each of them in jail starting immediately.
Id. at 117-18.
[24] The trial court then issued a written order on the contempt finding, in part, as
follows:
In the May 11th Order, this Court found the parties in contempt for failing to appear at the May 10th hearing and for violating the Court Orders instructing them to take hair follicle drug screens. Another referral was provided giving the parties until May 30th to take a drug screen to get in compliance.
Just minutes prior to the hearing on June 7, 2023, the Court Reporter contacted Right Choice DAT to see if the parties had appeared for a drug test and they had not. During the hearing, Father testified that they did appear for a drug screen, but that the Referral had expired. Allegedly, Mother went inside Right Choice DAT and was informed that the Referral had expired so the test was not given. Father could not recall which day and/or time they showed up which is unbelievable to this Court that the parties could not remember when this took place within the last seven (7) days. At one point, Father indicated they showed up on Friday, but that would have been June 2nd and the Referral would have still been valid. Mother then testified vaguely that it was maybe a Saturday, Sunday or Monday. However, Right Choice DAT is not open over the weekend. Moreover, because this Court routinely orders hair follicle drug tests at Right Choice DAT, it is aware that if a family shows up for a drug test and
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 13 of 42 there is a discrepancy in whether the Referral is valid, the organization calls the Court Staff to confirm whether the test should be given since the tests are paid for through grant funds.
The Court has no reason to believe that the parents attempted to take the drug screens and get in compliance with the Court Order, despite being given numerous chances. Both parties also had hair which was dyed bright red and orange which can often skew drug test results. The Court also has suspicion that both parties were under the influence of some type of substance during the hearing based upon their facial expressions and responses to questions.
When asked why the parties did not appear for the May 10th hearing, Father testified that he did not realize that he had to appear for just a review hearing. Then, he indicated that he was not getting notices. Both public defenders stated as officers of the Court that they advised the parties of the hearing date. Additionally, the parents are involved in numerous CHINS cases and have routinely attended review hearings. The suggestion that they did not realize they had to be present is not credible.
*****
For this reason and based upon the evidence presented during this contempt hearing, the Court imposes sanctions to be for each of them to serve an individual sentence of forty-five (45) days in the Vigo County Jail. . . .
The Court will consider suspending the jail sentence sanction under the following conditions. First, both parents must now take either a nail bed or body hair 12 panel drug test since their
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 14 of 42 head hair has been dyed. . . . If the drug tests results are negative, the Court may consider purging the jail sentence if the parties also submit to the other conditions. If the drug test results are positive, then the Court may suspend the jail sentence if the parties will voluntarily participate in an in-patient drug addiction/recovery program that is at least 28 days at a minimum and which will be paid for by the State. The second condition is that the parties sign a document agreeing to participate in the services recommended by DCS. So long as they participate in all the services recommended and ordered by the Court, then the jail sentence will remain suspended, but if they fail to participate then they will be required to complete the entire jail sentence.
IT IS THEREFORE ORDERED ADJUDGED AND DECREED that [Parents] are hereby sanctioned for being in contempt of Court and ordered to each serve forty-five (45) consecutive days of jail time at the Vigo County Jail. The terms upon which this jail sentence may be suspended and/or purged are set forth above. To be clear, the finding of contempt and imposed jail sentence sanction is for failure to appear on 5/10/2023 and failure to comply with orders dated 2/1/2023, 2/27/2023, 3/8/2023, 5/10/2023 and 5/30/2023 for drug testing.
Appellants’ Amended Consol. Suppl. App. Vol. II pp. 18-21. Parents appealed
the second CHINS determination and later filed an amended notice of appeal
to add the contempt order.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 15 of 42 Discussion and Decision I. Res Judicata
[25] Parents argue that the Second Petition was barred by res judicata. Res judicata
operates “to prevent repetitious litigation of disputes that are essentially the
same, by holding a prior final judgment binding against both the original parties
and their privies.” Matter of Eq.W., 124 N.E.3d 1201, 1208 (Ind. 2019). This
doctrine applies “where there has been a final adjudication on the merits of the
same issue between the same parties.” Id. Similar to double jeopardy in the
criminal context, res judicata operates to prevent a party from receiving the
proverbial “second bite at the apple.” Id.
[26] We begin by noting that, although Mother filed a motion to dismiss the Second
Petition on res judicata grounds, Father, who was pro se, did not. Our
Supreme Court has held that res judicata “must be raised by a party to the
proceeding so as to bring it to the court’s attention for review.” Id. at 1213.
“[T]he best practice for the moving party is to move for dismissal on res
judicata grounds at the earliest opportunity.” Id. at 1214. Accordingly,
although Father waived the issue by failing to bring it to the trial court’s
attention, we will address res judicata because Mother raised the issue.
[27] There are two branches of res judicata: claim preclusion and issue preclusion.
Id. at 1209. Claim preclusion, which is at issue here, can be used to bar a
successive lawsuit when “a particular [claim] is adjudicated and then put in
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 16 of 42 issue in a subsequent suit on a different cause of action between the same
parties or their privies.” Id.
Before a court can find that claim preclusion applies to bar a subsequent action, four essential elements must be met:
(1) The former judgment must have been rendered by a court of competent jurisdiction;
(2) The former judgment must have been rendered on the merits;
(3) The matter now in issue was or might have been determined in the former suit; and
(4) The controversy adjudicated in the former suit must have been between the parties to the present action or their privies.
Id.
[28] It is undisputed that the order on the First Petition was rendered by a court of
competent jurisdiction; that judgment in the first CHINS proceeding was
rendered on the merits; and that the first CHINS proceeding concerned the
parties to this action. Accordingly, only the third element—whether the matter
at issue in this action “was or might have been determined” in the First
Petition—is at issue here. Id.
[29] Our Supreme Court has recently addressed a similar issue in two opinions.
First, in Eq.W., DCS filed a CHINS petition but failed to present sufficient
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 17 of 42 evidence at the fact-finding hearing, and the trial court dismissed the first
petition without prejudice. The day after the first petition was dismissed, DCS
filed a second CHINS petition. The trial court later found that the children
were CHINS.
[30] On appeal, our Supreme Court held that “the claim preclusion branch of res
judicata applies to CHINS proceedings.” Id. at 1211. “[I]nvocation of this
doctrine could prevent repeated filings by DCS with no new factual basis until
one petition finally sticks. It could also prevent repetitive litigation of issues
that have been or could have been decided in an initial CHINS filing.” Id.
“[T]o escape the preclusive effect of res judicata in a CHINS proceeding, the
State’s subsequent petition must include new allegations of material fact
separate from what was available to DCS to use at the original fact-finding
hearing.” Id. at 1212.
Practically speaking, if the parent or guardian is successful in showing claim preclusion applies to bar a subsequent petition, the CHINS petition must be dismissed. However, this dismissal does not mean the State is forever barred from filing a subsequent CHINS petition or even from using a parent’s prior actions as evidence in support of a new filing. As long as there are no other procedural bars to the filing and the State demonstrates that the subsequent petition contains new allegations of conduct that took place after the dismissal of the prior proceeding, the State may file a new CHINS petition.
Id. Ultimately, the Supreme Court affirmed the second CHINS determination
because the parents failed to raise the issue of res judicata in the trial court.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 18 of 42 [31] Then, the Supreme Court decided R.L. v. Indiana Dep’t of Child Servs. & Child
Advocs., Inc., 144 N.E.3d 686, 687 (Ind. 2020). There, the trial court first
determined that the child was not a CHINS. Five days later, DCS filed a
second petition alleging that the child was a CHINS, which the trial court
eventually granted. On appeal, our Supreme Court found that “[t]he
subsequent petition was largely duplicative of the first and enunciated three
new, weakly supported allegations.” Id. at 691. Our Supreme Court held that
the mother’s motion to dismiss the second petition should have been granted
because the second petition was barred by res judicata.
[32] Here, the First Petition, which was filed in October 2021, alleged that Parents
left N.E. with a neighbor after they were involved in an “argument and/or
domestic violence incident” during which N.E. was in Mother’s arms. Ex. Vol.
VIII p. 209. Law enforcement also discovered that Parents’ residence did not
have functioning toilets, electricity, or water and was extremely cluttered. Fact-
finding hearings were held in early December 2021, and the First Petition was
granted on December 13, 2021. That CHINS finding was reversed by this
Court, and DCS filed the Second Petition on December 7, 2022.
[33] The Second Petition mentioned some of Parents’ history with DCS. The
Second Petition, however, also alleged multiple issues that occurred after N.E.
was first found to be a CHINS in December 2021. Specifically, DCS alleged
that: (1) Mother and Father failed to participate in visitation with N.E. for eight
months; (2) once Parents began to participate in visitation with N.E. and their
other children, they were often late, missed visitations, failed to follow rules of
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 19 of 42 visitation, argued with and threatened visitation supervisors, and appeared for
visitation under the influence of substances; (3) in October 2022, Father
allegedly pointed a gun at a man; (4) in October 2022, Father and N.E.’s
maternal grandmother made concerning social media posts regarding Father’s
and Mother’s conduct; (5) in May 2022, Mother was charged with domestic
battery, battery resulting in bodily injury, and battery based on an incident with
Father and two others; (6) in May 2022, Mother filed a petition for dissolution
of marriage and requested a protection order due to concerning domestic
violence, which was granted; and (7) Parents have persistently failed to comply
with trial court orders in the CHINS cases of their other children. The trial
court found that res judicata was inapplicable because the Second Petition
“does contain new allegations of material fact which are separate from what
was available to DCS at the [time] of the original fact finding hearing back in
2021.” Appellants’ App. Vol. II p. 132.
[34] We agree with the trial court. The Second Petition included allegations of
conduct that occurred after the First Petition was filed and after the fact-finding
hearings on the First Petition. Accordingly, the Second Petition included “new
allegations of material fact separate from what was available to DCS to use at
the original fact-finding hearing.” Eq.W., 124 N.E.3d at 1212. Mother failed to
demonstrate that the matters now at issue in the Second Petition were or might
have been determined in the First Petition. We, thus, conclude that the trial
court properly denied Mother’s motion to dismiss on grounds of res judicata.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 20 of 42 II. Mother’s Due Process Rights
[35] Next, Mother argues that her due process rights were violated by DCS’s failure
to perform a second investigation before filing the Second Petition. “Due
process requires ‘the opportunity to be heard at a meaningful time and in a
meaningful manner.’” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893 (1976)). Due process at all
stages of a CHINS case is vital because “‘procedural irregularities, like an
absence of clear findings of fact, in a CHINS proceeding may be of such import
that they deprive a parent of procedural due process with respect to a potential
subsequent termination of parental rights.’” Id. at 1258 (quoting In re J.Q., 836
N.E.2d 961, 967 (Ind. Ct. App. 2005)). Due process in a CHINS adjudication
turns on balancing the three Mathews factors: (1) the private interests affected by
the proceeding; (2) the risk of error created by the State’s chosen procedure; and
(3) the countervailing governmental interest supporting use of the challenged
procedure. Id. at 1257.
[36] Mother argues that “[t]he absence of a Form 310 report of abuse or neglect, and
the required Form 311 following investigation of allegations contained in a
Form 310 report, deprived Mother of any opportunity to administratively
appeal the ‘substantiation’ of abuse or neglect because there were admittedly no
such reports, and no substantiation.” Mother’s Appellant’s Br. p. 18. DCS is
statutorily required to assess all reports of child abuse and neglect. In re F.S., 53
N.E.3d 582, 598 (Ind. Ct. App. 2016). According to DCS, a DCS Form 310 is
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 21 of 42 completed after an initial report from the child abuse “hotline.” 9 Tr. Vol. II p.
206. The DCS Form 311 is then completed after a caseworker conducts an
assessment of the report. See § 19:16. Assessment and determination, 15A IND.
PRAC., FAMILY LAW—CHILDREN IN NEED OF SERVICES § 19:16 (2023-2024
ed.) (“As the initial report is documented in the so-called ‘310,’ the Department
documents its assessment, including the ‘substantiated/unsubstantiated’
determination, in a ‘311.’”).
[37] Our review of the Mathews factors reveals no due process violation. Mother
claims that her private interests were impacted because she was denied the
ability to administratively appeal a substantiation of neglect or abuse by DCS’s
chosen procedure. The governmental interest in the assessment, however, is
described in Indiana Code Section 31-33-8-6, which provides: “The primary
purpose of the assessment is the protection of the child.” (emphasis added). As
for the risk of error created by the State’s chosen procedure, DCS was well
aware of Parents’ behaviors after the fact-finding hearing on the First Petition,
and those behaviors were documented in the multiple on-going CHINS
proceedings. DCS determined that a Form 310 and, thus, a Form 311 were
unnecessary. DCS proceeded straight to filing the Second Petition regarding
N.E. Given the evidence presented at the fact-finding hearings, even if DCS
9 DCS has a special hotline for reporting allegations of child abuse. In re Ju.L., 952 N.E.2d 771, 774 (Ind. Ct. App. 2011). “Once a person makes an allegation to the hotline, a member of DCS creates a narrative summary of the allegation in a report called a 310 report. Then, an investigative case manager investigates the allegations described in the 310 report and determines whether the allegations are substantiated.” Id.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 22 of 42 had utilized the Form 310/311 procedures and Mother had been able to
administratively appeal a substantiation of neglect or abuse, her administrative
appeal would likely have been unsuccessful. Under these circumstances, a
balancing of the three Mathews factors reveals no due process violation.
III. Admission of Evidence
[38] Next, both Mother and Father challenge the admission of certain evidence
during the fact-finding hearings. Our standard of review of a trial court’s
admission or exclusion of evidence is an abuse of discretion. Griffith v. State, 31
N.E.3d 965, 969 (Ind. 2015). 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. In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). “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.
(quoting Sibbing v. Cave, 922 N.E.2d 594, 598 (Ind. 2010)). To determine
whether the admission of evidence affected a party’s substantial rights, we
assess the probable impact of the evidence upon the finder of fact. Id.
“Likewise, reversible error cannot be predicated upon the erroneous admission
of evidence that is merely cumulative of other evidence that has already been
properly admitted.” Id.
A. Mother’s Arguments
[39] Mother argues that the trial court abused its discretion by admitting Exhibits 6,
14, 15, 17, and 19 over Mother’s objection. Mother, however, does not even
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 23 of 42 identify the content of these exhibits and only makes a brief argument
concerning the foundation of photographs and messages from Father’s social
media page, which were included in DCS Exhibits 19 and 21.
[40] We conclude that this argument is waived. First, Mother has failed to make a
cogent argument on appeal. See Ind. Appellate Rule 46(A)(8); Loomis v.
Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding that the
failure to present a cogent argument waives the issue for appellate review),
trans. denied. Moreover, Mother did not argue to the trial court that the exhibits
lacked foundation. Mid-States Gen. & Mech. Contracting Corp. v. Town of
Goodland, 811 N.E.2d 425, 438 n.2 (Ind. Ct. App. 2004) (“An appellant who
presents an issue for the first time on appeal waives the issue for purposes of
appellate review.”). Accordingly, this argument is waived.
[41] Mother next argues that the trial court abused its discretion by admitting
hearsay statements from M.E. without conducting a hearing under Indiana
Code Section 35-37-4-6. 10 Again, Mother fails to specifically identify the
statements at issue here. We note that Bailey Poore, an assessment worker with
DCS, testified that she conducted an assessment regarding M.E. in April 2022,
which resulted in a CHINS petition regarding M.E. Mother objected to any
testimony regarding M.E.’s statements to Poore, and the trial court sustained
10 Indiana Code Section 35-37-4-6 allows for the admission of a statement made by a protected person under certain circumstances, but a hearing on the matter must be held.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 24 of 42 the objection. Poore testified only to her observations of M.E., not M.E.’s
statements to Poore.
[42] Later during the fact-finding hearing, Father questioned DCS employee Heidi
Deckard regarding who was responsible for M.E.’s April 2022 bruising, and
Deckard responded that “the child reported that [Mother] caused the injury.”
Tr. Vol. V p. 47. Mother did not object. DCS’s attorney then asked Deckard if
“the family case manager talk[ed] to M.E. about how she got the bruises,” and
Mother objected. Id. at 48. The trial court pointed out that M.E.’s statement
had already been elicited by Father and that Mother did not object to Father’s
question. Accordingly, Mother waived any objection to the admission of
M.E.’s statement.
[43] Waiver notwithstanding, the trial court stated that it would not consider M.E.’s
statements, and in its findings of fact and conclusions thereon, the trial court
did not find that Parents abused M.E. Because the trial court did not consider
M.E.’s statements, any error in the admission of M.E.’s statements was
harmless.
B. Father’s Arguments
[44] Father argues that the trial court abused its discretion by admitting certain
evidence. Father, however, concedes that he did not object to any of the
evidence and contends that the trial court committed fundamental error by
admitting the evidence.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 25 of 42 [45] “On rare occasions, appellate courts may analyze an issue under the
fundamental error doctrine to examine an otherwise procedurally defaulted
claim.” Eq.W., 124 N.E.3d at 1214. “[T]his review is extremely narrow and
‘available only when the record reveals a clearly blatant violation of basic and
elementary principles, where the harm or potential for harm cannot be denied,
and which violation is so prejudicial to the rights of the defendant as to make a
fair trial impossible.’” Id. (quoting Jewell v. State, 887 N.E.2d 939, 942 (Ind.
2008)).
[46] Father identifies the admission of the following evidence as fundamental error:
(1) the allegations from the First Petition; (2) the police report and probable
cause affidavit from Mother’s May 2022 arrest and the trial court’s questions of
Mother regarding the same; (3) “[h]earsay included within a report of abuse or
neglect included in a petition for rule to show cause,” Father’s Br. p. 25; (4)
Facebook posts of third parties regarding Parents; (5) an April 2022 Facebook
post that “included comments about ‘cps’ [sic] and included a video of [Father]
drinking what appeared to be a bottle of alcohol,” id.; (6) a May 2022 Facebook
post that included a video of a verbal altercation between Father and another
person; (7) “[a] series of provider Reports that included a large amount of
hearsay,” id.; (8) a May 2022 Facebook post that included rap lyrics; (9) two
October 2022 police reports regarding altercations between Father and other
persons; (9) hearsay statements in an eviction filing; and (10) Father’s
conviction at the age of sixteen and other criminal charges that were dismissed.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 26 of 42 [47] Father provides little or no analysis of his claims that this evidence was
inadmissible. Further, Father claims, without explanation, that the admission
of this evidence cumulatively resulted in the denial of a fair trial. “We will not
become an advocate for a party or address arguments that are inappropriate or
too poorly developed or expressed to be understood.” Stark v. State, 204 N.E.3d
957, 963 (Ind. Ct. App. 2023). Given Father’s lack of cogent analysis, we
conclude that this issue is waived.
IV. CHINS Determination
[48] Parents challenge the sufficiency of the evidence to support the trial court’s
determination that N.E. is a CHINS. CHINS proceedings are civil actions;
thus, “the State must prove by a preponderance of the evidence that a child is a
CHINS as defined by the juvenile code.” In re N.E., 919 N.E.2d 102, 105 (Ind.
2010); see Ind. Code § 31-34-12-3. On review, we neither reweigh the evidence
nor judge the credibility of the witnesses. In re D.J., 68 N.E.3d 574, 577-78
(Ind. 2017). Here, the trial court sua sponte entered findings of fact and
conclusions thereon in granting the Second CHINS petition. “As to the issues
covered by the findings, we apply the two-tiered standard of whether the
evidence supports the findings, and whether the findings support the
judgment.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). We review the
remaining issues under the general judgment standard, which provides that a
judgment “‘will be affirmed if it can be sustained on any legal theory supported
by the evidence.’” Id. (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 27 of 42 1997)). We will reverse a CHINS determination only if it is clearly erroneous.
D.J., 68 N.E.3d at 578.
[49] DCS must prove three elements for a juvenile court to adjudicate a child a
CHINS: (1) the child is under the age of eighteen; (2) that one of eleven
different statutory circumstances exist that would make the child a CHINS; and
(3) the child needs care, treatment, or rehabilitation that he or she is not
receiving and is unlikely to be provided or accepted without the coercive
intervention of the court. Id. at 580.
[50] Here, the trial court found N.E. was a CHINS under the general category of
neglect as defined in Indiana Code Section 31-34-1-1, which provides:
A child is a child in need of services if before the child becomes eighteen (18) years of age:
(1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision:
(A) when the parent, guardian, or custodian is financially able to do so; or
(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; and
(2) the child needs care, treatment, or rehabilitation that:
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 28 of 42 (A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.
The statute contains three basic elements: (1) the parent’s actions or inactions
have seriously endangered the child; (2) the child’s needs are unmet; and (3)
those needs are unlikely to be met without State coercion. S.D., 2 N.E.3d at
1287.
[51] “[T]he purpose of a CHINS adjudication is to protect children, not [to] punish
parents.” N.E., 919 N.E.2d at 106. A CHINS adjudication is not a
determination of parental fault but rather is a determination that a child is in
need of services and is unlikely to receive those services without intervention of
the court. Id. at 105. “A CHINS adjudication focuses on the condition of the
child . . . . [T]he acts or omissions of one parent can cause a condition that
creates the need for court intervention.” Id. (citations omitted). “A CHINS
finding should consider the family’s condition not just when the case was filed,
but also when it is heard.” S.D., 2 N.E.3d at 1290.
[52] Before addressing Parents’ arguments, we note that Parents seem to contend
that the trial court could not rely upon evidence of their acts prior to the
adjudication of the First Petition. Our Supreme Court has held that “past acts
by parents can be relevant to new CHINS filings involving the same parents
and children.” Eq.W., 124 N.E.3d at 1211. In fact, Indiana Code Section 31-
34-12-5 provides:
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 29 of 42 Evidence that a prior or subsequent act or omission by a parent, guardian, or custodian injured or neglected a child is admissible in proceedings alleging that a child is a child in need of services to show the following:
(1) Intent, guilty knowledge, the absence of mistake or accident, identification, the existence of a common scheme or plan, or other similar purposes.
(2) A likelihood that the act or omission of the parent, guardian, or custodian is responsible for the child’s current injury or condition.
Accordingly, the trial court was not required to ignore evidence of Parents’ acts
prior to the adjudication of the First Petition. That evidence was relevant to the
adjudication of the Second Petition, although the Second Petition could not be
based solely upon allegations adjudicated in the First Petition. See supra Part I
(discussing res judicata).
A. Seriously Endangered
[53] Parents challenge the trial court’s finding that N.E. is seriously endangered.
Parents argue that they could not have seriously endangered N.E. because she
was in foster care during the relevant time period. Parents seem to contend
that, unless N.E. was in their direct physical care, they could not seriously
endanger her.
[54] The trial court found N.E. seriously endangered due to unexplained bruising to
several of Parents’ children and domestic violence between Parents and other
violence committed or threatened by Parents. N.E., M.E., and another sibling Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 30 of 42 were observed to have “unexplained marks, abrasions and bruising, including a
bruise on [M.E.’s] throat which looks like a hand[,] and a black eye, all at
different times.” Appellants’ App. Vol. II p. 182. The bruises to M.E. occurred
after the First Petition was adjudicated. Moreover, after the First Petition was
adjudicated, Mother filed a petition for a protection order and alleged serious
and disturbing abuse by Father; Mother was arrested for domestic violence and
battery; and Father was accused of pointing a gun at and harassing another
man. Despite evidence of these events, Parents have refused to participate in
domestic violence services. Although Parents denied many of these events, the
trial court did not find Parents credible, and we cannot reweigh that
determination.
[55] The CHINS statute does not require that a court “wait until a tragedy occurs to
intervene.” Des.B., 2 N.E.3d at 838. A child cannot be returned to parents
where there is continuing abuse and/or violence in the home. Given the
significant evidence of domestic violence and other violence by Parents and
their refusal to participate in domestic violence services in M.E.’s CHINS case,
the trial court’s finding that N.E. is seriously endangered is not clearly
erroneous.
B. Needs Unmet
[56] Father argues that DCS failed to demonstrate that N.E.’s needs were unmet.
The trial court found that “[t]here is evidence that [N.E.’s] needs are not met
and/or that the parents are not capable of meeting her needs.” Appellants’
App. Vol. II p. 185. In support of this finding, the trial court noted that the Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 31 of 42 following occurred after the First Petition was adjudicated: (1) Parents were
evicted from their residence; (2) prior to the eviction, CASA observed that the
residence was in deplorable condition and Parents refused to allow DCS to
inspect the residence; (3) the trial court had concerns regarding Parents’ ability
to care for N.E.’s medical needs due to their repeated allegations of car
problems; and (4) the trial court had concerns regarding drug abuse by Parents
due to their repeated refusal to take drug screens.
[57] Father argued that he would secure new housing; it is speculative that Parents
would be unable to transport N.E. to medical appointments; and “[t]he issue of
substance abuse was settled in the previous appeal.” Father’s Br. p. 19. We
disagree that the issue of substance abuse was “settled” in the previous appeal.
Rather, concerns of Parents’ substance abuse persisted after the adjudication of
the First Petition due to their refusal to submit to drug screens in M.E.’s
CHINS case, Father smelling of marijuana at visitations with the children, and
Parents’ behaviors. Parents’ lack of housing also raises a significant concern
regarding their capacity to meet N.E.’s needs. We conclude that evidence of
Parents’ conduct after the First Petition was adjudicated demonstrates that
Parents are not capable of meeting N.E.’s needs, and the trial court’s finding is
not clearly erroneous.
C. Necessity of Coercive Intervention
[58] Finally, Father challenges the trial court’s finding that N.E.’s needs were
unlikely to be met without the coercive intervention of the court. This “final
element guards against unwarranted State interference in family life, reserving Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 32 of 42 that intrusion for families ‘where parents lack the ability to provide for their
children,’ not merely where they ‘encounter difficulty in meeting a child’s
needs.’” S.D., 2 N.E.3d at 1287 (quoting Lake Cnty. Div. of Family & Children
Servs. v. Charlton, 631 N.E.2d 526, 528 (Ind. Ct. App. 1994)).
[59] The trial court found “[t]here is abundant evidence that [N.E.’s] needs cannot
be met by the parents without S[t]ate coercion.” Appellants’ App. Vol. II p.
187. The trial court noted that Parents refused to participate in domestic
violence services; refused to submit to random drug screens despite multiple
court orders; refused to communicate with DCS except by email; and refused to
allow DCS to inspect their residence. The trial court, thus, concluded: “There
is a preponderance of evidence that [N.E.’s] needs cannot be met by the parents
without State coercion as the parents have proven that by their past actions, by
their refusal to participate in services and denial that they require services, and
by testifying during the fact finding hearing that they will not participate
without a Court Order.” Id. at 188.
[60] Father argues that the trial court placed the burden on Parents to “disprove”
allegations by DCS by forcing them to show participation in domestic violence
programs and forcing them to submit to drug screens. Father’s Br. p. 20. To
the contrary, DCS demonstrated Parents’ persistent and adamant refusal to
participate in services except for supervised visits with the children despite
Parents’ clear need for such services. Even during the fact-finding hearing,
Mother stated that she does not feel like she needs DCS services and she does
her “own therapy.” Tr. Vol. II p. 105. The trial court’s finding that N.E.’s
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 33 of 42 needs are unlikely to be met without the coercive intervention of the court is not
clearly erroneous. Accordingly, we conclude that the trial court’s grant of the
Second Petition is not clearly erroneous.
V. Contempt Finding
[61] Next, Father argues that the trial court erred by finding him in contempt.
Mother does not challenge the contempt finding on appeal. Father, however,
argues that: (1) the trial court failed to follow the procedures outlined in Indiana
Code Section 34-47-3-5 for indirect contempt; (2) Parents were held in contempt
without prior notification or the opportunity to be heard; (3) the trial court
relied upon information from the testing facility collected by its court reporter;
and (4) Parents were not afforded a meaningful way to purge the contempt.
DCS, however, argues that the contempt finding involved both direct and
indirect contempt; the lack of strict compliance with the indirect contempt
statute is excused; Father failed to object to the trial court’s reliance upon the
court reporter’s unsworn statement; and Parents were given the opportunity to
purge themselves of contempt.
[62] “Trial courts maintain considerable discretion in determining whether a party
should be found in contempt of court,” and these determinations are reviewed
for an abuse of discretion.” In re Paternity of B.Y., 159 N.E.3d 575, 577 (Ind. Ct.
App. 2020). Our court will reverse a finding of contempt only if there is no
evidence or inferences drawn therefrom that support it. Id.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 34 of 42 [63] “Contempt of court generally involves disobedience of a court or court order
that ‘undermines the court’s authority, justice, and dignity.’” Reynolds v.
Reynolds, 64 N.E.3d 829, 832 (Ind. 2016) (quoting In re A.S., 9 N.E.3d 129, 131
(Ind. 2014)). There are two kinds of contempt: direct contempt and indirect
contempt. Id. “Indirect contempt involves those acts committed outside the
presence of the court which nevertheless tend to interrupt, obstruct, embarrass
or prevent the due administration of justice.” Id. (internal quotations omitted).
Direct contempt involves “acts which are committed in the presence of the
court or in such close proximity to it so as to disrupt its proceedings while in
session.” A.S., 9 N.E.3d at 132.
[64] The trial court here found Father in contempt for two reasons—his failure to
appear at the May 10, 2023 review hearing and his failure to submit a hair
follicle drug test despite multiple court orders to do so. DCS argues that the
failure to attend a hearing amounts to direct contempt. We have held, however
that “a litigant’s failure to appear at a hearing (as opposed to an attorney’s
failure to appear) constitutes indirect contempt that requires compliance with
the procedural protections now found in Section 35-47-3-5, not direct
contempt.” In re Paternity of J.T.I., 875 N.E.2d 447, 452 n.5 (Ind. Ct. App.
2007) (emphasis added); see also Rice v. State, 874 N.E.2d 988, 991 (Ind. Ct.
App. 2007) (holding that, although an attorney can be found in direct contempt
for failure to appear for a scheduled court hearing, a layperson litigant cannot
be held in direct contempt for failure to appear); cf. Bellamy v. State, 952 N.E.2d
263 (Ind. Ct. App. 2011) (holding that, although the defendant was a layperson,
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 35 of 42 the trial court’s finding that the defendant was in direct contempt for failure to
appear was not an abuse of discretion where the defendant had been expressly
warned that any subsequent failure to timely appear would result in a contempt
finding), trans. denied. Accordingly, Father’s failure to appear at the review
hearing does not constitute direct contempt, and we must determine whether
the proper indirect contempt procedures were followed to find Father in
contempt for his failure to appear at the review hearing and failure to obtain the
hair follicle test.
[65] Indiana Code Chapter 34-47-3 governs indirect contempt and provides several
bases for a contempt finding. See, e.g., Ind. Code § 34-47-3-2 (“A person who
willfully resists, hinders, or delays the execution of any lawful process, or order
of any court of record is guilty of an indirect contempt of court.”). Father does
not dispute that he willfully resisted a court order. Rather, Father first argues
that he did not receive “prior notification or opportunity to be heard” as
required by Indiana Code Section 34-47-3-5. Father’s Appellant’s Br. p. 28.
[66] Indiana Code Section 34-47-3-5 provides the procedures to follow in cases of
indirect contempt as follows:
(a) In all cases of indirect contempts, the person charged with indirect contempt is entitled:
(1) before answering the charge; or
(2) being punished for the contempt;
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 36 of 42 to be served with a rule of the court against which the contempt was alleged to have been committed.
(b) The rule to show cause must:
(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;
(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and
(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.
(c) The court shall, on proper showing, extend the time provided under subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.
(d) A rule provided for under subsection (b) may not issue until the facts alleged to constitute the contempt have been:
(1) brought to the knowledge of the court by an information; and
(2) duly verified by the oath of affirmation of some officers of the court or other responsible person.
Further, Indiana Code Section 34-47-3-6(c) provides that, if the defendant
appears at the rule to show cause hearing, and:
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 37 of 42 If the defendant’s answer to the rule does not sufficiently deny, explain, or avoid the facts set forth in the rule, so as to show that no contempt has been committed, the court may proceed to attach and punish the defendant for the contempt, by:
(1) fine;
(2) imprisonment; or
(3) both fine and imprisonment.
[67] The statute, thus, requires the service of a rule to show cause on the defendant.
The rule to show cause must specify the allegations against the defendant and
set the matter for a hearing where the defendant must demonstrate why he
should not be “attached and punished for such contempt.” Ind. Code § 34-47-
3-5(b)(3). If the trial court finds the defendant in contempt, the trial court may
then “attach and punish the defendant for the contempt.” I.C. § 34-47-3-6(c).
[68] The trial court here did not follow the procedures set forth in Indiana Code
Chapter 34-47-3. The trial court stated at the May 10th hearing that it was
setting the contempt matter for hearing. The May 11th order, however, stated:
“The Court hereby holds [Parents] in contempt for violating Court Orders
dated February 2nd and 27, 2023, instructing them to take hair follicle drug
tests and for failing to appear for the hearing scheduled for May 10, 2023 . . . .”
Appellants’ Amended Consol. Suppl. App. Vol. II p. 14 (emphasis added). The
order then provided that the May 31st hearing was to impose sanctions.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 38 of 42 [69] At the rescheduled June 7th hearing, the trial court stated that the hearing was a
“rule to show cause” hearing. Tr. Vol. VI p. 105 (emphasis added). Parents
were then allowed to testify regarding their failure to appear at the May 10th
hearing and their failure to comply with multiple orders to obtain the hair
follicle drug testing. Also during the hearing, the trial court stated: “So, court
having already found them in contempt they are found in contempt for their
failure to appear at the review hearing on May tenth (10th).” Id. at 117
(emphasis added). The trial court’s order then stated: “In the May 11th Order,
this Court found the parties in contempt for failing to appear at the May 10th
hearing and for violating the Court Orders instructing them to take hair follicle
drug screens.” Appellants’ Amended Consol. Suppl. App. Vol. II p. 18
(emphasis added).
[70] Although under Indiana Code Chapter 34-47-3 the trial court should have
issued a rule to show cause and set the matter for hearing to determine whether
Parents were in contempt, the trial court appears to have found Parents in
contempt and then held a rule to show cause hearing to impose sanctions.
“Generally, a court’s authority to find a person in contempt rests on whether a
trial court has strictly complied with the statutory requirements set forth in the
rule to show cause statute.” 11 Reynolds, 64 N.E.3d at 833. Because the trial
11 Our Supreme Court has noted that strict compliance with the statute may be excused if “it is clear the alleged contemnor nevertheless had clear notice of the accusations against him or her.” Reynolds, 64 N.E.3d at 833. “Examples of this ‘clear notice’ exception include when a contemnor receives a copy of an original contempt information that contains detailed factual allegations of contempt or if the contemnor admits the
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 39 of 42 court did not issue a rule to show cause prior to finding Parents in contempt, we
conclude that the trial court erred by failing to follow the statutory procedures.
[71] Father also argues that the trial court erred by relying upon information
obtained from the testing facility by its court reporter. During the rule to show
cause hearing, the trial court stated: “[P]rior to this hearing starting I had my
court reporter call Right Choice D.A.T. to see if either party had taken a test or
appeared and the response was no [Parents] had not appeared to take a test.”
Tr. Vol. VI p. 117. In its order from the June 7th hearing, the trial court found:
“Just minutes prior to the hearing on June 7, 2023, the Court Reporter
contacted Right Choice DAT to see if the parties had appeared for a drug test
and they had not.” Appellants’ Amended Consol. Suppl. App. Vol. II p. 118.
Father contends that, because the court reporter did not testify, the court
reporter was not subject to cross-examination. Father, however, did not object
at the hearing to the trial court relying upon the information obtained by the
court reporter.
[72] The failure to object to the trial court “normally results in waiver and precludes
appellate review.” Des.B., 2 N.E.3d at 834. Waiver notwithstanding, we agree
that the trial court abused its discretion by using this procedure. “At all times
the trial court must maintain an impartial manner and refrain from acting as an
factual basis for a contempt finding.” Id. (quoting J.T.I., 875 N.E.2d at 451). Because the trial court here did not issue a rule to show cause before finding Parents in contempt, we conclude that strict compliance with the statute is not excused.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 40 of 42 advocate for either party. A violation of due process occurs where a trial judge
combines the roles of judge and advocate.” Chappey v. Storey, 204 N.E.3d 932,
939 (Ind. Ct. App. 2023) (internal quotes omitted), trans. denied. The evidence
from the court reporter was obtained at the trial court’s request, and the court
reporter did not testify under oath and was not subject to cross-examination.
Because Parents were not given the opportunity to cross-examine this evidence,
which the trial court sua sponte considered, we conclude that the trial court
erred by considering this evidence.
[73] Finally, Father argues that Parents were not given the opportunity to purge the
contempt. “[T]he ‘purge’ portion of [Indiana Code Section 34-47-3-5 ] has
typically only applied to cases where the trial court has ordered jail time to
coerce action by the contemnor.” Reynolds, 64 N.E.3d at 835. A jail sentence
for civil contempt must be coercive or remedial rather than punitive in nature.
In re Paternity of C.N.S., 901 N.E.2d 1102, 1106 (Ind. Ct. App. 2009). “To avoid
being purely punitive, a contempt order must offer an opportunity for the
recalcitrant party to purge himself or herself of the contempt.” Id. The trial
court’s order here, however, did include provisions for Father to purge himself
of the contempt. The order provided that the contempt could be purged if
Parents submitted to either a nail bed or body hair twelve-panel drug test and
participate in other services. See Appellants’ Amended Consol. Suppl. App.
Vol. II p. 20.
[74] Although Father was given the opportunity to purge himself of contempt, the
procedure used by the trial court did not comply with the statutory
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 41 of 42 requirements. Further, the trial court abused its discretion by considering
evidence obtained by the court reporter. Accordingly, we conclude that the trial
court erred by finding Father in contempt.
Conclusion [75] We conclude that the Second Petition was not barred by res judicata; Mother’s
due process rights were not violated; Parents have failed to establish an abuse of
discretion in the admission of evidence at the fact-finding hearing; and the trial
court’s grant of the Second Petition was not clearly erroneous. The trial court,
however, abused its discretion by finding Father in contempt because the trial
court failed to follow the statutory procedures and considered improper
evidence. Accordingly, we affirm in part and reverse in part.
[76] Affirmed in part and reversed in part.
Pyle, J., and Foley, J., concur.
Court of Appeals of Indiana | Opinion 23A-JC-996 | January 31, 2024 Page 42 of 42
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