In Re JV

875 N.E.2d 395, 2007 WL 3105406
CourtIndiana Court of Appeals
DecidedOctober 25, 2007
Docket02A03-0702-JV-69
StatusPublished

This text of 875 N.E.2d 395 (In Re JV) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re JV, 875 N.E.2d 395, 2007 WL 3105406 (Ind. Ct. App. 2007).

Opinion

875 N.E.2d 395 (2007)

In the Matter of J.V., C.V., D.V., and A.V., Children Alleged To Be In Need of Services,
Jose Vega, Sr. and Patty Alonzo, Appellants-Respondents,
v.
Allen County Department Of Family And Children Services, Appellee-Petitioner.

No. 02A03-0702-JV-69.

Court of Appeals of Indiana.

October 25, 2007.

*397 Richard J. Thonert, Fort Wayne, IN, Attorney for Appellants.

Sherry Hartzler, Department of Child Services, Fort Wayne, IN, Attorney for Appellee.

*396 OPINION

KIRSCH, Judge.

Jose Vega, Sr. ("Father") and Patty Alonzo ("Mother") (collectively, "Parents") appeal the trial court's determination that their children, J.V., C.V., D.V., and A.V., are children in need of services ("CHINS"). Parents raise three issues, which we restate as four issues:

I. Whether the orders entered by the trial court after the Permanency Hearing, on January 8, 2007, were final appealable orders;
II. Whether the trial court erred when it denied the Parents' Motion to Suppress;
III. Whether the trial court abused its discretion when it admitted evidence of the contents of a digital camera found at Parents' home and prior adjudications of Mother into evidence; and
IV. Whether the trial court's findings of fact and conclusions thereon are contrary to the law and the evidence.

We affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 2:00 a.m. on February 19, 2006, two Fort Wayne police officers arrived at Parents' home in response to a 911 call, and Mother answered the door. They asked her if they could come in to make sure everything was fine, and she allowed them to enter. Once inside the home, the officers observed that the home was in complete darkness and that there were many empty beer bottles in the living room, as well as women's lingerie and a pair of high heels. They found Father, naked, in a bathroom adjacent to the living room. At that time, Father was handcuffed and placed on a chair in the living room. The officers proceeded to look for the children and found them in their bedrooms, which were in the direct line of sight from the living room. J.V. was observed to be wearing a green t-shirt and dark pajama bottoms.

After speaking with the children to make sure they were unharmed, the officers continued to search Parents' home. During this search, a silver digital camera was discovered on top of the washer in a bathroom located off of the master bedroom. The officers turned on the camera and observed several pictures on the display screen. There were pictures of Mother, naked, on the couch in the living room *398 in sexual poses and pictures of Mother and Father engaged in sex acts. There were also pictures of J.V. with Mother, who was naked, and in at least one of these pictures, J.V. was touching Mother in her vaginal area. The officers identified J.V. as being the boy in the pictures because he was wearing the same green t-shirt in the pictures as he was wearing when they found him in his bedroom that night. There were also pictures of Mother, who was naked, and D.V. After observing these pictures, the officers closed the camera, left it where they found it, and went back to the living room to speak with Father. They asked Father if "there was anything going on that [they] needed to be aware of," and he said no, but did tell the officers that he had been having "kinky sex" with Mother on the couch in the living room. Dec. 5, 2006 Fact-finding Tr. at 80.

The officers informed their supervisor of what they had discovered and were instructed not to take the camera. Id. at 91. The supervisor contacted the Allen County Department of Family and Children Services ("DCS"), and a report was forwarded to the agency.

On February 20, 2006, at approximately 5:00 p.m., the police returned and took the children to the Child Advocacy Center to interview them. Detective Caesar DeJesus later obtained a search warrant and went to Parents' residence and inquired about where the camera was located. Parents told him that it was located inside of a satellite box, which was in the master bathroom. Detective DeJesus found the camera, but when he turned it on, there were no pictures on the camera, and the memory card was missing. In his search of the residence, he discovered a room adjacent to the master bedroom, which contained numerous framed, nude photos of Mother and other nude photos, magazines, and sexually explicit material. Detective DeJesus was unable to locate the memory card from the camera in his search.

On February 22, 2006, a preliminary inquiry hearing was held at which the trial court authorized the filing of a Verified Petition Alleging J.V., C.V., D.V., and A.V. to be CHINS, and the children were ordered to continue in foster care placement. On March 20, 2006, DCS filed a petition alleging the children to be CHINS. This petition was based upon allegations that the children had been neglected and were victims of sexual abuse. Appellant's App. at 493-99. On May 16, 2006, Parents filed a Motion to Suppress claiming that the evidence discovered when the police initially went to Parents' home on February 19 was obtained without a warrant and was therefore inadmissible. On November 28, 2006, the trial court entered an order denying Parents' Motion to Suppress and refusing to apply the exclusionary rule to a CHINS proceeding. Id. at 40-44. A fact-finding hearing was held on the CHINS petition on December 5 and 12, 2006. The trial court entered an order on January 8, 2007 finding the children to be CHINS, and a dispositional hearing was scheduled for January 28. At the dispositional hearing, the trial court issued an order containing a parent participation plan and continuing the children in their current placement. Id. at 53-55.

Parents filed their notice of appeal on January 12, 2007, seventeen days before the dispositional hearing. Their notice of appeal specifically stated that they were appealing from the trial court's determination of CHINS on January 8, 2007. An amended notice of appeal was filed on June 18, 2007, which again stated that Parents were appealing the January 8 determination. Additional facts will be added as necessary.

*399 DISCUSSION AND DECISION

I. Final Appealable Order

Parents contend that although they brought this appeal before the dispositional hearing was held, their appeal should not be dismissed for lack of a final, appealable order. They claim that the order entered on January 8, 2007 after the permanency hearing was a final, appealable order because it continued placement of the children outside of the home and stated that placement with Parents was "contrary to the welfare of the children." Appellant's App. at 50. Because Parents' rights as to the children were determined at that time, they argue that no further dispositional hearing was necessary, and the order on January 8 was a final, appealable order.

Without deciding whether the January 8 order was in fact a final, appealable order, we will review Parents' appeal. It has been held that once a trial court determines that a child is a CHINS, the trial court is required to hold a dispositional hearing because the CHINS determination is a mere preliminary step to be taken prior to choosing among several different dispositional alternatives. Hallberg v. Hendricks County Office of Family & Children,

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J.V. v. Allen County Department of Family & Children Services
875 N.E.2d 395 (Indiana Court of Appeals, 2007)

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Bluebook (online)
875 N.E.2d 395, 2007 WL 3105406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jv-indctapp-2007.