MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 27 2018, 6:33 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 Danielle Sheff Curtis T. Hill, Jr. Sheff Law Office Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Robert J. Henke Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Matter of E.E. (Minor April 27, 2018 Child) and Court of Appeals Case No. 49A04-1710-JC-2419 C.E. (Father), Appeal from the Marion Superior Appellant-Respondent, Court v. The Honorable Marilyn A. Moores, Judge Indiana Department of Child The Honorable Gael S. Deppert, Services, Magistrate
Appellee-Petitioner. Trial Court Cause No. 49D09-1705-JC-1522
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 1 of 7 [1] The Marion Superior Court adjudicated E.E. a child in need of services
(“CHINS”), and C.E., her father, appeals. C.E. argues that the Department of
Child Services (“DCS”) did not prove that venue was proper in Marion County
and that he should have been dismissed from the CHINS proceedings.
[2] We affirm.
Facts and Procedural History [3] C.E. and T.C. live in Indianapolis with their three children. Their oldest child
E.E. is six years old and is enrolled at Indianapolis Public School 90. On May
5, 2017, DCS case manager Quinn Kissane (“Kissane”) responded to a report
that E.E. had possibly been abused. She interviewed E.E. at School 90 and
observed several “linear and looped” marks on E.E.’s body and abrasions on
her face.
[4] C.E. and T.C. were asked to bring their other two children and meet with E.E.
and Kissane. T.C., E.E.’s mother, admitted that she struck E.E. with a
television cable as punishment. C.E. was not home when T.C. struck E.E. and
stated that he did not discipline the children. C.E. was not concerned that T.C.
struck E.E. and stated, “if [E.E.] had to go to foster care maybe that is what it
would take for her to learn her lesson.” Tr. p. 17. C.E. also admitted that he
regularly used marijuana.
[5] On May 9, 2017, DCS filed a petition alleging that the children were CHINS.
The children were removed from their home and placed in DCS custody. In
addition to recounting T.C.’s abuse of E.E. and C.E.’s marijuana use, the
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 2 of 7 petition alleged that E.E. had fifteen unexcused absences from school and
comes to school with poor hygiene.
[6] A fact-finding hearing was held on August 9, 2017. T.C. admitted that the
children were CHINS. Therefore, the hearing proceeded as to C.E.
Photographs of E.E.’s injuries, charges against T.C. filed by the Marion County
Prosecutor alleging battery resulting in bodily injury to a person less than
fourteen years old, and the Marion County Prosecutor’s request for a No
Contact Order between T.C. and E.E were admitted into evidence.
[7] After DCS presented its evidence, C.E. moved to dismiss the CHINS petition
pursuant to Trial Rule 41(B) arguing that the DCS had not proved venue. The
trial court granted C.E.’s motion to dismiss. But later that day, DCS filed a
motion to correct error, which the trial court granted. The court rescinded its
order dismissing the petition after taking judicial notice that E.E.’s school, an
Indianapolis Public School, is in Marion County. As to the two younger
children, the court determined that dismissal of the CHINS petition was
appropriate because DCS did not meet its burden of proving that those two
children were CHINS.
[8] The continued fact-finding hearing with regard to E.E. was held on August 23,
2017. The court subsequently adjudicated E.E. as a CHINS. The September 27,
2017 Dispositional Order established that E.E. would remain in foster care and
that T.C. would participate in home-based therapy, random drug screens, and
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 3 of 7 therapeutic supervised visits with E.E. The court did not order C.E. to
participate in any services. C.E. now appeals.
I. Venue
[9] C.E. argues that DCS failed to prove venue, and therefore, the trial court erred
when it denied his request to dismiss the CHINS petition pursuant to Trial Rule
41(B).1 Specifically, C.E. claims that DCS did not present any evidence of the
location where T.C. struck E.E.
[10] Indiana Code section 31-32-7-1 provides that if a child is alleged to be a
CHINS, proceedings may be commenced in the county “where the child
resides,” “where the act occurred,” or “where the condition exists.” The State is
required to prove venue but may establish venue by a preponderance of the
evidence and need not prove it beyond a reasonable doubt. Baugh v. State, 801
N.E.2d 629, 631 (Ind. 2004). And venue may be established by circumstantial
evidence. Bryant v. State, 41 N.E.3d 1031, 1037 (Ind. Ct. App. 2015).
[11] While we agree that DCS did not present evidence of the location where T.C.
struck E.E., pursuant to section 31-32-7-1, CHINS proceedings may be
commenced in the county where the child resides. Here, there is sufficient
circumstantial evidence to prove by a preponderance of the evidence that E.E.
resides in Marion County.
1 After the trial court reinstated the cause in response to DCS’s motion to correct error, C.E. renewed his request for dismissal at the subsequent fact-finding hearing.
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 4 of 7 [12] E.E. attends Indianapolis Public School 90 where she was interviewed by the
case manager. The trial court properly took judicial notice of the fact that
Indianapolis Public Schools are located in Marion County. From this fact, we
may infer that E.E. lives in Marion County. Moreover, C.E. admits in his brief
that he and T.C. live with their children in Indianapolis, Indiana. Appellant’s
Br. at 7. And the pleadings filed with the trial court list an Indianapolis address
for T.C. and C.E. This evidence sufficiently established that E.E. resides in
Marion County, and therefore, pursuant to Indiana Code section 31-32-7-1,
DCS proved that Marion County is the proper venue for the CHINS
proceedings. For these reasons, the trial court did not err when it denied C.E.’s
motion to dismiss.
II. II. Should C.E. Have Been Dismissed from the CHINS Proceedings
[13] C.E. also argues that he should have been dismissed from the CHINS
proceedings. C.E. claims that “[d]ue process, in the circumstances presented
here, should allow a separate finding as to Father or exclude Father from the
disposition regarding E.E.’s CHINS status.” Reply Br. at 15.
[14] “A CHINS adjudication focuses on the condition of the child, . . . and the acts
or omissions of one parent can cause a condition that creates the need for court
intervention.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). Although there is
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 27 2018, 6:33 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 Danielle Sheff Curtis T. Hill, Jr. Sheff Law Office Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Robert J. Henke Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Matter of E.E. (Minor April 27, 2018 Child) and Court of Appeals Case No. 49A04-1710-JC-2419 C.E. (Father), Appeal from the Marion Superior Appellant-Respondent, Court v. The Honorable Marilyn A. Moores, Judge Indiana Department of Child The Honorable Gael S. Deppert, Services, Magistrate
Appellee-Petitioner. Trial Court Cause No. 49D09-1705-JC-1522
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 1 of 7 [1] The Marion Superior Court adjudicated E.E. a child in need of services
(“CHINS”), and C.E., her father, appeals. C.E. argues that the Department of
Child Services (“DCS”) did not prove that venue was proper in Marion County
and that he should have been dismissed from the CHINS proceedings.
[2] We affirm.
Facts and Procedural History [3] C.E. and T.C. live in Indianapolis with their three children. Their oldest child
E.E. is six years old and is enrolled at Indianapolis Public School 90. On May
5, 2017, DCS case manager Quinn Kissane (“Kissane”) responded to a report
that E.E. had possibly been abused. She interviewed E.E. at School 90 and
observed several “linear and looped” marks on E.E.’s body and abrasions on
her face.
[4] C.E. and T.C. were asked to bring their other two children and meet with E.E.
and Kissane. T.C., E.E.’s mother, admitted that she struck E.E. with a
television cable as punishment. C.E. was not home when T.C. struck E.E. and
stated that he did not discipline the children. C.E. was not concerned that T.C.
struck E.E. and stated, “if [E.E.] had to go to foster care maybe that is what it
would take for her to learn her lesson.” Tr. p. 17. C.E. also admitted that he
regularly used marijuana.
[5] On May 9, 2017, DCS filed a petition alleging that the children were CHINS.
The children were removed from their home and placed in DCS custody. In
addition to recounting T.C.’s abuse of E.E. and C.E.’s marijuana use, the
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 2 of 7 petition alleged that E.E. had fifteen unexcused absences from school and
comes to school with poor hygiene.
[6] A fact-finding hearing was held on August 9, 2017. T.C. admitted that the
children were CHINS. Therefore, the hearing proceeded as to C.E.
Photographs of E.E.’s injuries, charges against T.C. filed by the Marion County
Prosecutor alleging battery resulting in bodily injury to a person less than
fourteen years old, and the Marion County Prosecutor’s request for a No
Contact Order between T.C. and E.E were admitted into evidence.
[7] After DCS presented its evidence, C.E. moved to dismiss the CHINS petition
pursuant to Trial Rule 41(B) arguing that the DCS had not proved venue. The
trial court granted C.E.’s motion to dismiss. But later that day, DCS filed a
motion to correct error, which the trial court granted. The court rescinded its
order dismissing the petition after taking judicial notice that E.E.’s school, an
Indianapolis Public School, is in Marion County. As to the two younger
children, the court determined that dismissal of the CHINS petition was
appropriate because DCS did not meet its burden of proving that those two
children were CHINS.
[8] The continued fact-finding hearing with regard to E.E. was held on August 23,
2017. The court subsequently adjudicated E.E. as a CHINS. The September 27,
2017 Dispositional Order established that E.E. would remain in foster care and
that T.C. would participate in home-based therapy, random drug screens, and
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 3 of 7 therapeutic supervised visits with E.E. The court did not order C.E. to
participate in any services. C.E. now appeals.
I. Venue
[9] C.E. argues that DCS failed to prove venue, and therefore, the trial court erred
when it denied his request to dismiss the CHINS petition pursuant to Trial Rule
41(B).1 Specifically, C.E. claims that DCS did not present any evidence of the
location where T.C. struck E.E.
[10] Indiana Code section 31-32-7-1 provides that if a child is alleged to be a
CHINS, proceedings may be commenced in the county “where the child
resides,” “where the act occurred,” or “where the condition exists.” The State is
required to prove venue but may establish venue by a preponderance of the
evidence and need not prove it beyond a reasonable doubt. Baugh v. State, 801
N.E.2d 629, 631 (Ind. 2004). And venue may be established by circumstantial
evidence. Bryant v. State, 41 N.E.3d 1031, 1037 (Ind. Ct. App. 2015).
[11] While we agree that DCS did not present evidence of the location where T.C.
struck E.E., pursuant to section 31-32-7-1, CHINS proceedings may be
commenced in the county where the child resides. Here, there is sufficient
circumstantial evidence to prove by a preponderance of the evidence that E.E.
resides in Marion County.
1 After the trial court reinstated the cause in response to DCS’s motion to correct error, C.E. renewed his request for dismissal at the subsequent fact-finding hearing.
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 4 of 7 [12] E.E. attends Indianapolis Public School 90 where she was interviewed by the
case manager. The trial court properly took judicial notice of the fact that
Indianapolis Public Schools are located in Marion County. From this fact, we
may infer that E.E. lives in Marion County. Moreover, C.E. admits in his brief
that he and T.C. live with their children in Indianapolis, Indiana. Appellant’s
Br. at 7. And the pleadings filed with the trial court list an Indianapolis address
for T.C. and C.E. This evidence sufficiently established that E.E. resides in
Marion County, and therefore, pursuant to Indiana Code section 31-32-7-1,
DCS proved that Marion County is the proper venue for the CHINS
proceedings. For these reasons, the trial court did not err when it denied C.E.’s
motion to dismiss.
II. II. Should C.E. Have Been Dismissed from the CHINS Proceedings
[13] C.E. also argues that he should have been dismissed from the CHINS
proceedings. C.E. claims that “[d]ue process, in the circumstances presented
here, should allow a separate finding as to Father or exclude Father from the
disposition regarding E.E.’s CHINS status.” Reply Br. at 15.
[14] “A CHINS adjudication focuses on the condition of the child, . . . and the acts
or omissions of one parent can cause a condition that creates the need for court
intervention.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). Although there is
a certain implication of parental fault in many CHINS adjudications, the truth of the matter is that a CHINS adjudication is simply that—a determination that a child is in
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 5 of 7 need of services. Standing alone, a CHINS adjudication does not establish culpability on the part of a particular parent.
Id. And “a CHINS intervention in no way challenges the general competency
of a parent to continue a relationship with the child.” Id.
[15] Because a CHINS adjudication establishes only the status of the child, “a
separate analysis as to each parent is not required in the CHINS determination
stage.” Id. at 106. “Indeed, to adjudicate culpability on the part of each
individual parent in a CHINS proceeding would be at variance with the
purpose of the CHINS inquiry: determining whether a child’s circumstances
necessitate services that are unlikely to be provided without the coercive
intervention of the court.” Id. (citation omitted).
[16] Here, T.C. admitted that E.E. was a CHINS, but C.E. did not. For this reason,
the trial court properly conducted a fact-finding hearing as to the entire matter.
See In re K.D., 962 N.E.2d 1249, 1259 (Ind. 2012). Our courts have not held that
due process requires a separate CHINS determination for each parent, only that
each parent is entitled to a fact-finding hearing to determine whether the child is
a CHINS. See In re N.E., 919 N.E.2d at 106.
[17] The trial court found that DCS proved that E.E.’s “physical and mental health
is seriously endangered due to injury by the act of Mother, and that [E.E.]
needs care, treatment, or rehabilitation that she is not receiving and is unlikely
to be provided or accepted without the coercive intervention of the Court.”
Appellant’s App. p. 104. The court also found that due to her injuries, E.E. was
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 6 of 7 presumed a CHINS pursuant to Indiana Code section 31-24-12-4,2 and that
presumption was not rebutted. Id. At the fact-finding hearing, C.E. did not
dispute the allegation that T.C. beat E.E. with a television cable and that he and
T.C. lived in the same home.
[18] We agree with C.E. that there is no evidence that he caused E.E.’s injuries, but
this fact was addressed by the court’s dispositional order. T.C. was ordered to
participate in several services, but C.E. was not ordered to participate in any
services and was allowed unsupervised parenting time with E.E.
[19] For all of these reasons, we conclude that C.E.’s argument that he should have
been dismissed or excluded from the proceedings adjudicating E.E. a CHINS
lacks merit.
III. Conclusion
[20] DCS established proper venue in Marion County and C.E.’s argument that he
should have been dismissed from the CHINS proceedings is meritless.
[21] Affirmed.
Riley, J., and May, J., concur.
2 Indiana Code section 31-34-12-4 provides in pertinent part that if DCS presents competent evidence that a child was injured due to an act or omission of the child’s parent and there is a reasonable probability that the injury was not accidental, a rebuttable presumption is raised that the child is a CHINS.
Court of Appeals of Indiana | Memorandum Decision 49A04-1710-JC-2419 | April 27, 2018 Page 7 of 7