CHINS: K.C. v. Indiana Department of Child Services

• Court: Indiana Court of Appeals
• Decided: September 4, 2024
• Docket: 24A-JC-70
• Status: Published

Opinion

FILED Sep 04 2024, 9:29 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana In the Matter of: A.B. and R.B. (Minor Children), Children in Need of Services and K.C. (Mother) and C.B. (Father), Appellants-Respondents

v.

Indiana Department of Child Services, Appellee-Petitioner

September 4, 2024 Court of Appeals Case No. 24A-JC-70 Appeal from the Madison Circuit Court The Honorable Stephen J. Koester, Judge The Honorable Jason P. Jamerson, Juvenile Referee

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 1 of 13 Trial Court Cause Nos. 48C02-2304-JC-95 48C02-2304-JC-96

Opinion by Judge Mathias Chief Judge Altice and Judge Bailey concur.

Mathias, Judge.

[1] K.C. (“Mother”) and C.B. (“Father”) appeal the trial court’s order adjudicating

their two children as Children in Need of Services (“CHINS”). They raise three

issues, which we restate as:

I. Whether the trial court lacked the authority to sua sponte issue protective orders between the parents;

II. Whether the trial court abused its discretion when it admitted a police officer’s testimony at the factfinding hearing; and,

III. Whether the CHINS adjudication is supported by a preponderance of the evidence.

[2] We affirm the CHINS adjudication, but we reverse in part and remand with

instructions for the court to vacate the protective orders.

Facts and Procedural History [3] Mother and Father, who are not married, have two children: A.B., born in June

2016, and R.B., born in April 2018. On January 3, 2023, Mother requested a

protective order against Father in case number 48C04-2301-PO-3. The trial

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 2 of 13 court issued a protective order with a two-year term after finding that Father

represented a credible threat to Mother’s safety.

[4] On April 16, 2023, Mother called the police and reported that Father had struck

her in the face and attempted to choke her. A few days later, DCS investigated

a report of domestic violence in Mother’s home and that Father had also

violated the protective order by his presence in Mother’s home. 1 Specifically,

DCS received information that Father committed domestic violence against

Mother while the children were playing in a bathtub. When the family case

manager interviewed Mother, she observed an abrasion on Mother’s lip. A few

days after DCS began its investigation, the trial court dismissed the protective

order at Mother’s request.

[5] On April 28, DCS filed a petition alleging that seven-year-old A.B. and five-

year-old R.B. were CHINS. The children remained in Mother’s care.

[6] The trial court held an initial hearing on May 15, but Parents did not appear.

The court later learned that Parents’ notice of the hearing was deficient because

the address of the hearing location was incorrect. Nonetheless, during the May

15 hearing, the court ordered the children detained, and DCS placed the

children with their great-grandmother that day. Father was also arrested on

May 15 for the April 16 domestic incident. And the court sua sponte issued

1 Father had a prior Class A misdemeanor domestic battery conviction and Mother was the victim of that offense. Father pleaded guilty in 2016 and completed his probation in June 2017.

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 3 of 13 protective orders between Mother and Father. See Appellants’ App. pp. 71-78.

In doing so, the court named each parent as the petitioner against the other

parent, even though neither parent had sought such protective orders. Id.

[7] After the trial court learned that Parents were not given the correct address for

the May 15 hearing, the court held another hearing the next day. Parents were

present at that hearing. Father appeared remotely from jail. Both Parents

objected to the entry of the protective orders at the hearing, but the court kept

the orders in place. The trial court agreed to return the children to Mother’s

care but only after she agreed to comply with the protective order. The court

appointed counsel for Mother, but Father indicated that he would have the

funds to hire private counsel.

[8] In July, the State moved to dismiss Father’s pending criminal charges in case

number 48C04-2305-F5-1317, and the trial court granted that motion. 2 Ex. Vol.

pp. 25-26. Pursuant to Indiana Code section 35-38-9-1(b)(1), the court issued an

order for pending expungement because the criminal charges against Father had

been dismissed. Ex. Vol. p. 30.

[9] The trial court held the CHINS fact-finding hearing on September 18 and

November 11. Over Parents’ objection, the court allowed Chesterfield Police

Officer Derek Wyatt to testify to his observations when he responded to the

2 The criminal court also issued an order vacating the No Contact Orders that had been issued in the criminal case between Father and Mother and the children. Ex. Vol. pp. 26-27.

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 4 of 13 April 16 report of domestic violence between Parents. The officer stated that

when he arrived at Mother’s home, she was crying and had “a busted lip that

was bleeding.” Tr. p. 11. Mother reported to the officer that she and Father had

fought, Father hit her in the mouth, and he tried to choke her. Id. When the

officer spoke to Father, he denied Mother’s allegations.

[10] DCS presented evidence that, a few days after the incident, family case

manager Jessica Milliner spoke to Mother at her home. Mother had an

“abrasion on her upper lip.” Id. at 18. Mother stated that she did not know how

she had injured her lip and that Father had not hit her. Id. at 19. Milliner spoke

to Father over the phone, and he denied that he had been involved in a physical

altercation with Mother. Id. at 20.

[11] The family case manager testified that Parents did not know how to properly

communicate in their children’s presence. Id. at 54. She expressed concern that

the children would suffer the effects of the “cycle of abuse” and would be more

likely to be involved in abusive relationships in the future. Id. The family case

manager believed that services were necessary so that Parents could learn how

to provide a healthy environment for the children.

[12] On December 27, the trial court issued the dispositional order. The court

ordered Parents to participate in services which included their active

participation and successful completion of domestic violence assessments and

programs. And the court ordered Father to participate in “Father Engagement

Services to include a curriculum on domestic violence.” Appellants’ App. p. 23.

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 5 of 13 The trial court also modified the No Contact Order “to allow the parents to

communicate in regards to the children but that they are not to be around each

other.” Id.

[13] Parents now jointly appeal.

Protective Order Issued in the CHINS Proceeding [14] Parents claim that the trial court violated their due process rights when the

court sua sponte entered orders for protection under the Indiana Civil

Protection Order Act (“CPOA”). We agree with the Parents that the trial court

lacked authority to sua sponte issue the protective orders. 3 Appellants’ Br. at 12-

13.

[15] The CPOA governs orders for protection and was created to ensure the safety

and protection of domestic violence victims and to prevent future domestic

violence. Ind. Code § 34-26-5-1, et seq. But the plain language of the CPOA

allows a trial court to grant orders for protection only after a petition has been

filed. See Ind. Code § 34-26-5-2, -9. The CPOA does not contain any language

granting trial courts authority to issue protective orders sua sponte. 4

3 The State argues that Parents have waived these claims, but we disagree. The court sua sponte issued the orders in Parents’ absence. Parents objected to the orders at their first opportunity, the May 16 initial hearing. 4 We also observe that, when a petitioner requests dismissal of an order of protection, “the court shall without delay or any conditions dismiss the case without prejudice.” See Ind. Code § 34-26-5-12.

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 6 of 13 [16] Moreover, while the statutes concerning CHINS actions allow the court to issue

orders sua sponte in certain circumstances, there is no statutory language

permitting the court to sua sponte issue protective orders between parents. For

example, courts adjudicating CHINS petitions may “[o]rder a person who is a

party to refrain from direct or indirect contact with the child.” 5 Ind. Code § 31-

34-20-1(a)(7) (emphasis added). The court may also “[o]rder a perpetrator of

child abuse or neglect to refrain from returning to the child’s residence.” Id. at

(a)(8). And courts have authority to “issue an order . . . to control the conduct

of any person in relation to the child.” I.C. § 31-32-13-1 (emphasis added).

[17] The State does not direct us to any statute granting the trial court authority to

issue sua sponte protective orders under the CPOA. And we have reviewed the

CPOA and conclude that the trial court lacked authority to sua sponte issue

protective orders between Mother and Father. For this reason, we remand this

case with instructions to vacate the protective orders issued on May 15, 2023.6

[18] We now turn our attention to Parents’ arguments concerning the CHINS

adjudication.

5 A DCS attorney, guardian ad litem, or court appointed special advocate may also petition the juvenile court to request a no contact order between a child and any person. Ind. Code § 31-34-25-1. 6 At the May 15 hearing, the trial court created documents that made it appear as if Mother and Father had each petitioned for protective orders against each other. The court also issued findings in each order for protection, even though no party was present or had presented evidence, stating that “Petitioner was present at the hearing and the Respondent was not present.” Appellants’ App. pp. 72, 76. The court also “found” that “Respondent had notice and an opportunity to be heard.” Id. The findings are clearly unsupported by the record because neither parent was present at the May 15 hearing through no fault of their own and neither parent petitioned for an order for protection.

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 7 of 13 Admission of Officer Wyatt’s Testimony [19] During the fact-finding hearing, and over Parents’ objection, the trial court

admitted Officer Wyatt’s testimony about the April 2023 domestic violence

report. Parents argued the testimony was inadmissible because the charges for

that incident were dismissed and expunged. Tr. pp. 6-7. On appeal, Parents

claim the trial court abused its discretion when it admitted the officer’s

testimony.

[20] The admission of evidence is entrusted to the discretion of the trial court.

D.B.M. v. Ind. Dep’t of Child Servs., 20 N.E.3d 174, 179 (Ind. Ct. App. 2014),

trans. denied. Evidentiary rulings of a trial court are afforded great deference on

appeal and are overturned only upon a showing of an abuse of discretion. In re

Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). We will reverse the trial court’s

decision regarding the admission of evidence only when the decision is against

the logic and effect of the facts and circumstances before the court. In re L.T.,

145 N.E.3d 864, 868 (Ind. Ct. App. 2020).

[21] After the trial court dismissed Father’s criminal charges, the records were

properly expunged pursuant to Indiana Code section 35-38-9-1. In relevant part,

the expungement statute’s purpose is to allow an individual who satisfies

certain criteria to escape the stigma associated with an arrest that does not result

in a conviction. B.S. v. State, 95 N.E.3d 177, 180 (Ind. Ct. App. 2018). The

statute speaks only to the expungement of records, not the facts underlying the

charged offense. Cf. Whaley v. Medical Licensing Bd. of Ind., 184 N.E.3d 721, 725

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 8 of 13 n.2 (Ind. Ct. App. 2022) (observing that Indiana Code section 35-38-9-10, the

“anti-discrimination statute” only pertains to consideration of an expunged

conviction . . . and not “to consideration of the facts underlying the

conviction . . . .”).

[22] There is no language in the authority cited by Parents addressing the

admissibility of the underlying facts of expunged records of charges or

convictions. And we are not persuaded by Parents’ argument that the trial court

should not have admitted Officer Wyatt’s testimony concerning the facts

underlying the expunged charges, particularly where those facts led to the DCS

involvement in this case. We therefore conclude that the trial court did not

abuse its discretion when it admitted Officer Wyatt’s testimony.

Sufficient Evidence to Support the CHINS Adjudication [23] The purpose of a CHINS adjudication is to “protect children, not punish

parents.” In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). The proceeding thus

focuses on “the best interests of the child, rather than guilt or innocence as in a

criminal proceeding.” Id. Trial court judges are often faced with the challenge of

balancing multiple factors and multiple voices in a CHINS case. At the fact-

finding hearing, the sole issue before the court is whether the child is a CHINS

based upon the criteria in the CHINS statutes. T.Y.T. v. Allen County Div. of

Family & Children, 714 N.E.2d 752, 756 (Ind. Ct. App. 1999).

[24] In this case, DCS had to establish by a preponderance of the evidence that (1)

the children were under eighteen; (2) that the children were CHINS under

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 9 of 13 Indiana Code section 31-34-1-1 because “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”; and (3) the care, treatment, or rehabilitation needed to address

those circumstances is unlikely to be provided or accepted without coercive

intervention of the court. See In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012);

Appellants’ App. pp. 66-67. On review, we neither reweigh the evidence nor

judge the credibility of the witnesses and will consider only the evidence and

reasonable inferences that support the trial court’s decision. In re K.D., 962

N.E.2d at 1253.

[25] Parents argue that DCS failed to prove that they are unlikely to meet their

children’s needs absent court intervention. Appellants’ Br. at 10. In support of

their argument, Parents allege that DCS did not present evidence that the

children were harmed or endangered, and they point out that the family case

manager testified that the children seemed happy. Tr. pp. 23, 57. Parents note

that the children were placed in Mother’s care, and the court did not order any

services for the children. Finally, Parents argue there was no evidence that the

children had observed domestic violence or that violence between the Parents

had impacted them. Appellant’s Br. at 12.

[26] A child’s exposure to domestic violence can support a CHINS finding. In re

N.E., 919 N.E.2d 102, 106 (Ind. 2010); see also K.B. v. Ind. Dep’t of Child Servs.,

24 N.E.3d 997, 1003-04 (Ind. Ct. App. 2015) (stating that a single incident of

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 10 of 13 domestic violence in a child’s presence may support a CHINS finding).

Importantly, the CHINS statute does not require the juvenile court and DCS to

wait until a child is physically or emotionally harmed to intervene; rather, a

child may be determined to be a CHINS if his or her physical or mental

condition is endangered. In re R.P., 949 N.E.2d 395, 401 (Ind. Ct. App. 2011).

[27] DCS presented evidence of a history of domestic violence between Father and

Mother, which resulted in Father’s conviction for domestic battery in 2016.

Unquestionably, children are endangered by domestic violence in their home

even when the children do not witness a specific violent incident. The children

may not have witnessed Father’s violence toward Mother, but they were in the

bathtub in the home when the domestic violence occurred.

[28] Moreover, our supreme court has addressed the harm that children suffer when

they are exposed to domestic violence between their parents. See In re E.M., 4

N.E.3d 636, 644-45 (Ind. 2014); see also S.H. v. D.W., 139 N.E.3d 214, 216 (Ind.

2020) (acknowledging that domestic violence is “a public-health crisis that

harms both the victim and those within the victim’s household. Children

exposed to domestic violence are more likely to suffer significant psychological

and developmental issues.”). By failing to provide their children with a home

free from domestic violence, Parents have not provided the children with an

appropriate, safe home.

[29] We turn now to whether the coercive intervention of the court was necessary.

When the police responded to the report of the domestic incident in April 2023,

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 11 of 13 Mother told the officer that Father hit her in her mouth and tried to choke her.

The officer observed that Mother was crying and had “a busted lip that was

bleeding.” Tr. p. 11. Yet, Mother retracted her statements after DCS became

involved and continued to deny that Father had hit her as she initially reported.

The pattern of domestic violence between Parents, and Mother’s denials that

she was the victim of domestic violence, are evidence that the coercive

intervention of the court is necessary to ensure that Parents receive counseling

and therapy to assist them in providing a safe home for the children free from

domestic violence.

[30] For all of these reasons, we conclude that DCS proved by a preponderance of

the evidence that the children are CHINS.

Conclusion [31] The trial court lacked statutory authority to issue sua sponte protective orders

between Parents, and we remand this case to the court with instructions to

vacate those orders.

[32] Concerning the CHINS factfinding hearing and adjudication, we conclude that

the trial court did not abuse its discretion when it admitted Officer Wyatt’s

testimony into evidence, and the trial court’s order adjudicating the children as

CHINS is supported by sufficient evidence.

[33] Affirmed in part, reversed in part, and remanded for proceedings consistent

with this opinion.

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 12 of 13 Altice, C.J., and Bailey, J., concur.

ATTORNEY FOR APPELLANTS Dorothy Ferguson Anderson, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-JC-70 | September 4, 2024 Page 13 of 13