CHINS: D.F. v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 12, 2018
• Docket: 32A01-1711-JC-2570
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 12 2018, 8:57 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Aaron E. Haith Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

CHINS: June 12, 2018 Court of Appeals Case No. 32A01-1711-JC-2570 D.F., Appeal from the Hendricks Appellant, Superior Court v. The Honorable Karen M. Love, Judge Indiana Department of Child Trial Court Cause Nos. Services, 32D03-1701-JC-2 32D03-1701-JC-3 Appellee.

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JC-2570 | June 12, 2018 Page 1 of 9 Statement of the Case [1] D.F. (“Mother”) appeals the trial court’s order adjudicating S.J. and N.J. to be

Children in Need of Services (“CHINS”). Mother specifically argues that there

is insufficient evidence to support the adjudication. Concluding that the

Indiana Department of Child Services (“DCS”) presented sufficient evidence to

support the CHINS adjudication, we affirm the trial court.

[2] We affirm.

Issue Whether there is sufficient evidence to support the CHINS adjudication.

Facts [3] The evidence most favorable to the CHINS adjudication reveals that Mother is

the parent of M.J., who was born in January 1999; S.J., who was born in

January 2001; and N.J., who was born in May 2002. The three children are

biological brothers who Mother adopted when they were toddlers. Mother is

the children’s biological great-aunt, and the children called her Aunt. D.

[4] In the early morning hours of December 29, 2016, M.J. was awakened by

Mother screaming and yelling that he had not washed the dishes the previous

night. Mother told M.J. that she would no longer pay his high school expenses.

M.J. told Mother that if she woke him again in a similar manner, he would

punch her in the face. Mother responded that “she was gonna . . . buy guns and

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JC-2570 | June 12, 2018 Page 2 of 9 try to kill all three [brothers].” (Tr. Vol. 1 at 103). After Mother had left for

work, M.J. washed the dishes and cleaned the house.

[5] Mother returned home from work that evening and telephoned the Avon Police

Department to report that her sons had threatened her that morning. Officer

Adam Barnhart (“Officer Barnhart”) was dispatched to Mother’s house. He

had previously been dispatched to Mother’s house several times for domestic

disputes reported by Mother. Each time he had arrived, the three young men

had been calm and respectful to him. Officer Barnhart, who also works as a

resource officer at Avon High School, had known the three young men to be

respectful to him and others at school as well.

[6] When Officer Barnhart arrived at Mother’s home on the evening of December

29, Mother told him that her sons were no longer welcome at her house and

that she wanted them to leave. However, she had no suggestions as to where

they could stay. M.J. suggested that the young men could stay with their

football coach and his wife. Officer Barnhart contacted the coach’s wife, who

said that the three young men were welcome in the coach’s home. As the

young men were leaving Mother’s home, she told them to give her their cell

phones. Officer Barnhart took the young men to their coach’s house and told

the coach to contact Mother within a few days to see if the young men were

able to return home.

[7] In early January 2017, Officer Barnhart returned to Mother’s house and learned

that Mother had contacted DCS and was still refusing to allow her sons to

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JC-2570 | June 12, 2018 Page 3 of 9 return home. DCS Caseworker Laveta Carney (“Caseworker Carney”) also

visited Mother that same day and asked her why her sons could not return

home. Mother simply said that the young men were no longer welcome in her

home. She also did not want them staying at their coach’s house. Instead, she

wanted them to leave Avon and be sent to Texas to live with their biological

father’s relatives. Mother warned Caseworker Carney to take a law

enforcement officer with her when she went to speak with her sons because the

young men were aggressive. However, when Caseworker Carney arrived at the

coach’s home to speak with the young men, they were all very polite.

[8] Two days later, DCS filed petitions alleging that M.J., S.J., and N.J. were

CHINS. The trial court held a hearing on the petitions in April 2017. At that

time, M.J. had turned eighteen and had been dismissed from the case. The

hearing proceeded on the status of S.J. and N.J.

[9] Testimony at the hearing revealed that S.J. had previously overheard Mother

tell her sister to bring over a gun because she was going to kill everyone. S.J.

testified that he frequently came home from football workouts to find no food

in the home and that Mother had told him that he was on his own. N.J.

testified that Mother had withheld food as punishment and had tried to break

his computer by throwing it across the room. N.J. had also returned home to

find the front door locked. He had spent the night in a car without food and

had drunk water from the hose attached to the side of the house. According to

N.J., Mother’s home was “not a safe environment, [she was] always yelling,

cussing or fighting.” (Tr. Vol. 1 at 182). Mother had told both young men that

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JC-2570 | June 12, 2018 Page 4 of 9 they would not be successful and she had failed to show them any affection or

love.

[10] In addition, DCS Family Case Manager Chyane Hone (“Case Manager Hone”)

testified that she had offered services, such as individual and family counseling,

to Mother to reunify her with her sons. However, Mother had told Case

Manager Hone that she did not want her sons to return to her home and that

she would not participate in any services. The young men were both

participating in individual therapy, and the football coach and his wife were

attending services as recommended by the young men’s therapist. At the time

of the hearing, Mother had not seen her sons since they had left her home in

December 2016.

[11] Following the hearing, the trial court issued a detailed nineteen-page order that

included one hundred and thirty-one findings and concluded as follows:

DCS has proven, by a preponderance of the evidence, that [S.J.] and [N.J.]’s physical and mental health is seriously endangered because of Mother’s refusal to supply the child[ren] with necessary food, shelter, and supervision and counseling. DCS proved by a preponderance of the evidence, that the coercive intervention of the Court is necessary on the date of the fact- finding hearing.

(App. 105). Mother appeals the trial court’s adjudication that her sons are

CHINS.

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JC-2570 | June 12, 2018 Page 5 of 9 Decision [12] Mother argues that there is insufficient evidence to support the CHINS

adjudication. When determining whether there is sufficient evidence to support

a CHINS determination, we consider only the evidence most favorable to the

judgment and the reasonable inferences to be drawn therefrom. In re S.D., 2

N.E.3d 1283, 1287 (Ind. 2014). This Court will not reweigh the evidence or

reassess the credibility of the witnesses. Id. at 1286. Where, as here, a juvenile

court’s order contains specific findings of fact and conclusions of law, we

engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App.

2014). First, we determine whether the evidence supports the findings, and

then, we determine whether the findings support the judgment. Id. Findings

are clearly erroneous when there are no facts or inferences to be drawn

therefrom that support them. Id. A judgment is clearly erroneous if the

findings do not support the juvenile court’s conclusions or the conclusions do

not support the resulting judgment. Id. We further note that, as a general rule,

appellate courts grant latitude and deference to trial courts in family law

matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). “This

deference recognizes a trial court’s unique ability to see the witnesses, observe

their demeanor, and scrutinize their testimony, as opposed to this court’s only

being able to review a cold transcript of the record.” Id.

[13] As a preliminary matter, we note that Mother challenges none of the trial

court’s findings. As a result, she has waived any argument relating to whether

these unchallenged findings are clearly erroneous. See McMaster v.

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JC-2570 | June 12, 2018 Page 6 of 9 McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (explaining that

unchallenged trial court findings are accepted as true). We now turn to the

substantive issues in this case.

[14] A CHINS proceeding is a civil action. In re N.E., 919 N.E.2d 102, 105 (Ind.

2010). Therefore, DCS must prove by a preponderance of the evidence that the

child is a CHINS as defined by the juvenile code. Id. INDIANA CODE § 31-34-

1-1 provides that a child is a CHINS 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 the necessary food, clothing, shelter, medical care, education, or supervision; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court.

[15] A CHINS adjudication focuses on the child’s condition rather than the parent’s

culpability. In re N.E., 919 N.E.2d at 105. The purpose of a CHINS

adjudication is to provide proper services for the benefit of the child, not to

punish the parent. Id. at 106. A CHINS adjudication in no way challenges the

general competency of parents to continue relationships with their children. Id.

at 105.

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JC-2570 | June 12, 2018 Page 7 of 9 [16] Here, Mother argues that there is insufficient evidence to support the CHINS

adjudication. Specifically, she first argues that the testimony of S.J. and N.J. is

incredibly dubious. Within the narrow confines of the incredible dubiosity rule,

a court may impinge upon a jury’s function to judge the credibility of a witness.

Dallas v. Cessna, 968 N.E.2d 291, 298 (Ind. Ct. App. 2012). However, the rule

does not apply in civil proceedings. Id. at 299. Mother’s argument therefore

fails.

[17] Mother also contends as follows:

[DCS] failed to prove by a preponderance of the evidence that the children were in need of services as charged. The evidence did not reasonably support a theory that the children’s physical or mental condition was either seriously impaired or endangered as a result of [Mother’s] inability, refusal or neglect or that the children were not provided ample food, clothing, shelter, medical care, education or supervision. The children needed services which were not offered by DCS to [Mother]. Though the same would have been provided with the aid of DCS and did not require the coercive intervention of the court.

(Mother’s Br. 15).

[18] However, Mother has waived appellate review of this issue because she has

failed to support it with cogent argument and relevant authority. See Kentucky

Nat’l. Ins. Co. v. Empire Fire and Marine Ins. Co., 919 N.E.2d 565, 598 (Ind. Ct.

App. 2010) (holding that argument was waived for failure to cite authority or

provide cogent argument).

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JC-2570 | June 12, 2018 Page 8 of 9 [19] Waiver notwithstanding, we find no error. Our review of the evidence reveals

that Mother failed to provide for her son’s basic needs of food, shelter, and

supervision. She has not allowed them to return home since she kicked them

out of her house in December 2016. She has also been emotionally abusive to

her children and threatened them with physical abuse, including death. In

addition, she has refused to participate in counseling or any other DCS-referred

services. This evidence is sufficient to support the CHINS determination.

[20] Affirmed.

Vaidik, C.J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-JC-2570 | June 12, 2018 Page 9 of 9