MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 07 2016, 9:26 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT J.C. ATTORNEYS FOR APPELLEE Ruth Johnson Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Appellate Division Robert J. Henke Indianapolis, Indiana David E. Corey Danielle L. Gregory Deputy Attorneys General Indianapolis, Indiana Indianapolis, Indiana ATTORNEYS FOR APPELLANT S.P. Ruth Johnson Marion County Public Defender Agency Appellate Division Indianapolis, Indiana Jill M. Acklin McGrath, LLC Carmel, Indiana
IN THE COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 1 of 20 In the Matter of D.C., C.C., and November 7, 2016 I.S., Children in Need of Court of Appeals Case No. Services, 49A05-1602-JC-208 S.P., Mother, and J.C., Father, Appeal from the Marion Superior Court Appellants-Respondents, The Honorable v. Marilyn A. Moores, Judge The Honorable Rosanne Ang, Magistrate Indiana Department of Child Services, Trial Court Cause Nos. 49D09-1508-JC-2507 Appellee-Petitioner, 49D09-1508-JC-2508 49D09-1508-JC-2509 and Child Advocates, Inc., Co-Appellee (Guardian ad Litem).
Kirsch, Judge.
[1] S.P. (“Mother”) and J.C. (“Father”) appeal from the juvenile court’s order
adjudicating the children, D.C., C.C., and I.S. (collectively, “the Children”), to
be children in need of services (“CHINS”). Father raises two issues for our
review, and Mother raises one issue, which we restate and consolidate as
follows:
I. Whether the juvenile court’s CHINS adjudication order was clearly erroneous because the findings were not supported by the evidence and the conclusions were not supported by the findings; and
II. Whether D.C. and C.C. were improperly detained by the juvenile court.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 2 of 20 [2] We affirm.
Facts and Procedural History [3] Mother and Father are the parents of two children, D.C., born on October 21,
2000, and C.C., born on October 24, 2004. Mother is also the parent of I.S.,
born on February 13, 2008; however, the father of I.S. is T.S. Paternity was
established as to all of the Children, but neither Father nor T.S. paid Mother
financial support for their respective Children before the CHINS case was
initiated. Mother had physical custody of the Children, and they lived in
Marion County.
[4] On August 16, 2015, the Indiana Department of Child Services (“DCS”)
received a report that I.S. was hospitalized at Riley Hospital for Children in
Indianapolis (“Riley Hospital”) and had been intubated and that Mother had
engaged in fights with hospital staff and family members and had been asked to
leave the hospital. DCS family case manager (“FCM”) Olyvia Hoff (“FCM
Hoff”), an assessment worker for the fatality and near-fatality team,1 went to
Riley Hospital to investigate the report.
[5] About two weeks prior to I.S. being hospitalized, Mother had traveled to
Kentucky and stayed with T.S. for about six days. During the assessment,
Mother told FCM Hoff that I.S. began to get sick while she was in Kentucky,
1 FCM Hoff testified at the CHINS hearing that near fatalities are situations involving children who are “intubated or in the ICU.” Tr. at 45-46.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 3 of 20 but Mother believed it was just because she was not home. Tr. at 50. Mother
testified that, when she went to Kentucky, she left the Children in the care of
her mother (“Grandmother”) and her sister (“Aunt”); however, Mother did not
mention Aunt to FCM Hoff and only said that Grandmother took care of the
Children. Id. at 27, 53. Mother told FCM Hoff that Grandmother “is a
paranoid schizophrenic and also had multiple health issues.” Id. at 53. Mother
also stated that Grandmother sometimes “is unable to even care for herself.”
Id. DCS believed that Mother’s decision to leave the Children with
Grandmother was a concern due to the fact that Mother was aware of
Grandmother’s health conditions and that Grandmother could not care for
herself at times. Id. at 96-97.
[6] Mother stated to FCM Hoff that when she returned to Indiana from Kentucky,
I.S. went to school Monday and Tuesday of that week, but was sent home by
the school nurse on Wednesday “for feeling ill.” Id. at 50. I.S. stayed home the
rest of Wednesday and Thursday, but returned to school on Friday “feeling
fine.” Id. at 50-51. He did not begin to feel ill again until Sunday night, and his
condition “got extremely worse after Monday”; when Mother attempted to
move I.S., “he would start just screaming in pain.” Id. at 51. Mother told
FCM Hoff that she was “unsure of why [I.S.] was sick or what happened.” Id.
On August 11, 2015, which was Tuesday, Mother took I.S. to Community East
Hospital, where he was admitted and then transferred to Riley Hospital on
August 12. I.S. underwent surgery, but Mother said she was not told “what the
surgery was for” and that “they needed to open him up immediately and find
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 4 of 20 out what was going on with him.” Id. at 10. Mother stayed with I.S. at Riley
Hospital for about five or six days and observed a tube in his mouth or nose,
and during that period of time, I.S. was not conscious. I.S. had to undergo at
least one other surgery while hospitalized. The medical personnel at Riley
Hospital determined that I.S.’s injuries were “non-accidental.” Id. at 110.
Mother acknowledged that I.S. was in her care and custody for the ten days
prior to his admission to Riley Hospital, but did not observe any accidents and
was not aware of any severe blows to his abdomen that occurred in that period
of time. Id. at 25, 33-34, 58. Although Mother was “told there would be
training” for taking care of I.S. after his discharge from Riley Hospital, she did
not inquire about any training. Id. at 123.
[7] While I.S. was at Riley Hospital, Mother was involved in an altercation with a
nurse. Mother told the nurse that she no longer wanted the nurse to work on
I.S. because the nurse “removed the catheter wrong.” Id. at 36. Mother told
FCM Hoff that the nurse tried to remove the catheter, which woke I.S. from his
sedation, and he started screaming. Id. at 51. Mother denied threatening the
nurse, but merely asked for her not to be on I.S.’s care. Id. Mother was also
involved in an altercation with members of T.S.’s family. Mother informed
FCM Hoff that one of the relatives yelled at Mother and threatened her in front
of the Children, so Mother “threatened her back and pushed her away.” Id. at
51-52. After these altercations, Riley Hospital asked Mother to leave for
twenty-four hours, but she did not return for four days because “they called
DCS on [her].” Id. at 38.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 5 of 20 [8] I.S. was hospitalized from August 11 until September 18, 2015. At the time of
his discharge, I.S. was placed with his paternal aunt. Prior to his discharge
from Riley Hospital, I.S. was interviewed by a forensic interviewer. During the
interview, only the forensic interviewer was present with I.S., but FCM Hoff
was able to observe through a window. At one point in the interview, FCM
Hoff observed I.S. “lay his head down on the table,” and based on this
observation, she was concerned that I.S. did not feel safe in Mother’s care. Id.
at 62-63.
[9] DCS was concerned with placing the Children with Mother based on Mother’s
lack of supervision, lack of knowledge about how I.S. was injured, anger issues,
and decision to leave the Children with Grandmother, who had physical and
mental health issues. Mother had also admitted marijuana use, and T.S. was
not a good placement option because he worked out of state regularly. DCS
had some concerns about Father, but not about placing D.C. and C.C. in his
care. Father tested positive for marijuana during the assessment phase and
again on the date of the fact-finding hearing, and DCS pursued random drug
screens to address these concerns.
[10] On August 20, 2015, DCS filed a petition alleging the Children to be CHINS.
At the initial and detention hearing, the juvenile court ordered the removal of
the Children from Mother’s care and placed D.C. and C.C. with Father, while
I.S. was ordered to have continued placement at Riley Hospital with
authorization for release to relative care or foster care upon his release. The
juvenile court ordered detention of the Children for their protection, and a
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 6 of 20 guardian ad litem (“GAL”) was appointed. D.C. and C.C. remained in
Father’s care for the duration of the CHINS case, and the GAL reported that
they were doing well in their placement. When I.S. regained consciousness in
the hospital, he did not want to talk about the incident that caused him to be
hospitalized; when he was released from Riley Hospital, he was placed with a
paternal aunt, where he remained for the duration of the CHINS case. As part
of the CHINS proceedings, Mother agreed to participate in random drug
screens, home-based case management, home-based therapy, and a mental
health evaluation.
[11] On November 16, 2015, a fact-finding hearing was held on the CHINS petition.
At the hearing, Father did not have custody of D.C. and C.C., but he had filed
a motion to modify custody before the hearing. At the conclusion of the fact-
finding hearing, the juvenile court issued its findings, conclusions, and order
adjudicating the Children to be CHINS. A dispositional hearing was held on
January 12, 2016. At this hearing, DCS recommended random drug screens for
Father due to his testing positive for marijuana in the past; however, no other
services were ordered for Father, and DCS had no safety concerns regarding the
placement of D.C. and C.C. in Father’s care. As part of the dispositional order,
the juvenile court ordered Mother to participate in home-based case
management, home-based therapy, psychological evaluation, and to follow up
on all recommendations. D.C. and C.C. were to remain in the care of Father,
and I.S. was ordered to remain in relative care. Father and Mother now appeal.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 7 of 20 Discussion and Decision
I. Sufficiency of the Evidence [12] When a juvenile court’s order contains specific findings of fact and conclusions
thereon, we engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind.
Ct. App. 2014) (citing In re T.S., 906 N.E.2d 801, 804 (Ind. 2009)). 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 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
reverse only upon a showing that the decision of the juvenile court was clearly
erroneous. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).
[13] When determining whether sufficient evidence exists in support of a CHINS
determination, we consider only the evidence most favorable to the judgment
and the reasonable inferences 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.
[14] DCS had the burden of proving by a preponderance of the evidence that the
Children were CHINS. Ind. Code § 31-34-12-3. Indiana Code sections 31-34-
1-1 through 11 specify the elements of the CHINS definition that the State must
prove:
(1) the child is under the age of 18;
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 8 of 20 (2) one or more particular set or sets of circumstances set forth in the statute exists; and
(3) the care, treatment, or rehabilitation needed to address those circumstances is unlikely to be provided or accepted without the coercive intervention of the court.
In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). Here, the juvenile court
adjudicated the Children to be CHINS pursuant to 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; 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.
Therefore, this statute requires “three basic elements: that the parent’s actions
or inactions have seriously endangered the child, that the child’s needs are
unmet, and . . . that those needs are unlikely to be met without State coercion.”
In re S.D., 2 N.E.3d at 1287.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 9 of 20 [15] In the present case, Father and Mother argue that the juvenile court’s order
adjudicating the Children as CHINS was clearly erroneous and was not
supported by sufficient evidence. Specifically, Father and Mother challenge
several of the juvenile court’s findings, arguing that the evidence did not
support those findings. However, there are also several findings that Father and
Mother do not challenge. To the extent Father and Mother do not challenge
certain of the juvenile court’s findings of fact, these unchallenged facts stand as
proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to
challenge findings by trial court resulted in waiver of argument that findings
were clearly erroneous), trans. denied.
[16] Both Father and Mother challenge Finding 6, which stated:
In July of 2015, [Mother] left the children in the care of [Grandmother] while she went out of state to stay with [T.S.]. Despite having knowledge that [Grandmother] has a diagnosis of paranoid schizophrenia, has multiple health issues, and is at times unable to care for herself, [Mother] left the children in the care of [Grandmother] for six days.
Appellant’s App. at 124.2
[17] Although Mother acknowledges that a DCS employee testified that Mother told
her that Grandmother is unable to care for herself sometimes, Mother contends
2 Father and Mother filed separate appendices. Unless otherwise notes, we cite to Father’s appendix merely as Appellant’s Appendix.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 10 of 20 that the “intended inference that [Mother] was neglectful in leaving” the
Children in Grandmother’s care was not supported by the record because the
evidence did not “reflect the extent of [Grandmother’s] being ‘unable to care for
herself,’” what Grandmother does in those situations, and whether
Grandmother “was in such a state when [Mother] went to Kentucky.”
Appellant Mother’s Br. at 17. Initially, we find that Mother’s argument that there
was insufficient evidence to support this finding is merely a request for this
court to reweigh the evidence because Mother concedes that FCM Hoff testified
that Mother had told her about Grandmother’s health issues and inability to
take care of herself. Id. (citing Tr. at 53). Thus, the record supports the finding.
Additionally, Mother claims that the finding shows that the juvenile court
found her neglectful. However, the finding does not actually state that Mother
was neglectful; it states that Mother left the Children in Grandmother’s care for
six days, knowing of Grandmother’s mental and physical health issues. Mother
also argues that the evidence did not support the finding because Grandmother
did not live in the home with the Children; however, the evidence established
that Grandmother stayed at Mother’s home with the Children while Mother
was in Kentucky. Tr. at 27.
[18] Both Mother and Father assert that the evidence did not support Finding 6
because Mother left the Children in the care of both Grandmother and Aunt.
Although Mother did testify that she left the Children in Aunt’s care, tr. at 27,
the trial court was not required to believe that testimony. FCM Hoff testified
that Mother told her only that she left the Children with Grandmother and did
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 11 of 20 not mention Aunt. Id. at 53. We will not reweigh the evidence or reassess the
credibility of the witnesses. In re S.D., 2 N.E.3d at 1286. The evidence
supported Finding 6.
[19] Mother next challenges a portion of Finding 7, which stated in pertinent part:
“Following [Mother’s] return to the state, [I.S.] was in good health for
approximately one and a half weeks.” Appellant’s App. at 124. Mother argues
that the evidence did not “quantitatively” support this finding. Appellant
Mother’s Br. at 18. However, Mother testified at the fact-finding hearing that she
had been home “for maybe a week and a half” before I.S. was taken to the
hospital, and she described his health as “good” during that period of time. Tr.
at 30. Therefore, the evidence supported Finding 7.
[20] Mother also takes issue with Finding 9 and contends it was not supported by
sufficient evidence. Finding 9 stated, “During the DCS assessment of the
children, the DCS assessment worker had concerns that [I.S.] did not feel safe
in the home of his mother.” Appellant’s App. at 124. Mother asserts that this
finding “is an apparent reference to . . . testimony from the DCS assessment
worker[] regarding her observation of the forensic interview of I.S.” and that the
juvenile court was speculating in making the finding because an inference
cannot be made that I.S. felt unsafe from the testimony of FCM Hoff. Appellant
Mother’s Br. at 18. Contrary to Mother’s contention, the juvenile court was not
making a finding that I.S. actually felt unsafe in Mother’s home in Finding 9;
instead, the juvenile court was merely making the finding that FCM Hoff had
such concerns. During her testimony at the fact-finding hearing, FCM Hoff
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 12 of 20 stated that she observed I.S. “lay his head down on the table” during the
forensic interview, and based on this observation, she was concerned that I.S.
did not feel safe in Mother’s care. Id. at 62-63. Therefore, Finding 9 was
supported by sufficient evidence.
[21] Mother next claims that Finding 10 was unclear. Finding 10 stated, “[Mother]
has no knowledge of the cause of [I.S.’s] injury and did not know the nature of
his follow-up care on the date of the fact-finding.” Appellant’s App. at 124.
Mother concedes that she admitted she was not aware of what caused I.S.’s
injury, tr. at 19, but contends that there is no inference to be made from the fact
that Mother did not know how the injury occurred other than the injury was
“non-accidental.” Tr. at 110. Mother further argues that there is no apparent
inference given as to the language of Finding 10 stating that she did not know
the nature of I.S.’s follow-up care. She states that it is logical that she would
not know the nature of I.S.’s care at the fact-finding hearing since I.S. had not
been in her care for nearly three months at that time.
[22] As to the first part of Finding 10, Mother concedes, and the evidence at the fact-
finding hearing showed, that Mother testified that she had no knowledge of the
cause of I.S.’s injury. Appellant Mother’s Br. at 19; Tr. at 19. As to the second
portion of Finding 10 concerning Mother’s knowledge of the follow-up care of
I.S., Mother testified that she knew very little about I.S.’s injuries, the treatment
he received in the hospital, and what care he needed once he left the hospital.
Id. at 12-13, 15-16, 94-95, 123. Although Mother asserts that it is not surprising
that she did not know the nature of I.S.’s follow-up care at the fact-finding since
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 13 of 20 I.S. had been out of her care for almost three months at that time, the evidence
shows that she knew hardly anything about I.S.’s condition and care he needed
at the time he was in the hospital and that she did not wish to learn about his
follow-up care, choosing not to attend the training offered by Riley Hospital.
Id. at 94-95. The evidence supported Finding 10.
[23] Father argues that the evidence did not support Finding 11, which stated,
“[Father] is not currently the custodial parent of [D.C.] and [C.C.] and did not
regularly support the children prior to the filing of the action.” Appellant’s App.
at 124. Father contends that the evidence did not support Finding 11 because
there was no evidence that he was ever ordered to pay support to Mother for
D.C. and C.C. However, the juvenile court’s finding did not state anything
about Father having been ordered to pay support to Mother. As Father
concedes, Mother testified at the fact-finding hearing that Father did not “pay
child support or provide financial support” to her prior to D.C. and C.C. being
placed with him. Tr. at 6. Father also asserts that, although he did not provide
money directly to Mother, he supported D.C. and C.C. in other ways. Father
specifically points to testimony by a DCS case worker that Father had regular
contact with D.C. and C.C. and they had a bedroom at his house. Id. at 101.
However, having regular contact does not establish that Father was “regularly
support[ing] the [C]hildren prior to the filing of the [CHINS] action.” See
Appellant’s App. at 124. The evidence supported Finding 11.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 14 of 20 [24] Father next claims that the trial court’s conclusions were not supported by the
evidence or the findings. He specifically argues that the findings did not
support the juvenile court’s Conclusion 12, which stated:
[D.C.], [C.C.], and [I.S.]’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. Despite having knowledge that [Grandmother] is unable to fully care for herself, [Mother] left the children for nearly one week with [Grandmother].
Appellant’s App. at 124-25. Father contends that the evidence presented
indicated that the Children were provided food, clothing, shelter, medical care,
education, and supervision by both Mother and Father. He also asserts that the
evidence showed that Mother left the Children in the care of Grandmother and
Aunt while she went out of town and that Grandmother was fine and taking her
medications.
[25] In the present case, the evidence showed that I.S. suffered a serious injury that
was deemed non-accidental while he was in the care and custody of Mother.
Mother claimed to have no knowledge of how the injury occurred and had no
basic understanding of what I.S.’s injuries were and what his medical needs
entailed. Mother was also the custodial parent of D.C. and C.C. as well as I.S.
She exhibited anger issues and admitted to marijuana use. Additionally, the
evidence presented at the fact-finding hearing established that Mother left the
Children in Grandmother’s care when Mother left town for six days and that
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 15 of 20 Grandmother suffered from various mental and physical health issues and had
trouble taking care of herself at times. Based on this evidence, the juvenile
court could reasonably infer that the Children were not safe in Mother’s care.
Conclusion 12 was not clearly erroneous.
[26] Father also argues that the findings did not support the juvenile court’s
Conclusion 14, which stated: “[D.C.], [C.C.], and [I.S.] need care, treatment,
or rehabilitation that they are not receiving and are unlikely to be provided or
accepted without the coercive intervention of the court.” Id. at 125. He
contends that evidence did not support this conclusion because neither D.C.
and C.C. nor he required services through DCS as a part of the CHINS
proceedings. Father also asserts that there was no evidence that, if required, he
would have refused services, therefore, no coercion by the juvenile court was
necessary.
[27] “The purpose of the CHINS adjudication is to ‘protect the children, not punish
parents.’” In re K.D., 962 N.E.2d at 1255. “The process of the CHINS
proceeding focuses on ‘the best interests of the child, rather than guilt or
innocence as in a criminal proceeding.’” Id. There are many situations in
which a child may be adjudicated a CHINS, including: through no fault of the
parent, such as a missing child, or a child endangering his own health; when
only one parent may be responsible as when physical abuse of a child occurs at
the hands of only one parent; or based on both parents’ behavior, which is
frequent in neglect circumstances. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 16 of 20 [28] CHINS statutes do not require that a court wait until a tragedy occurs to
intervene. Roark v. Roark, 551 N.E.2d 865, 871 (Ind. Ct. App. 1990). Once the
juvenile court concludes that a parent’s action or omissions have created a
CHINS condition the court may infer that such actions and condition would
continue in the absence of court intervention. In re M.R., 452 N.E.2d 1085,
1089 (Ind. Ct. App. 1983) (“Having concluded that Mother’s actions were
detrimental to her children’s well-being, the trial court was entitled to believe
that such conduct would continue in the absence of court intervention.”).
[29] Father is correct in his contention that DCS did not order him or D.C. and C.C.
to participate in services. However, when D.C. and C.C. were removed from
Mother’s custody and placed with Father, they were placed with him on a trial
home visit because Father did not have custody of D.C. and C.C. Appellant’s
App. at 34. Therefore, the juvenile court’s intervention was necessary to
facilitate the trial home visit placement of D.C. and C.C. Without the juvenile
court’s intervention, D.C. and C.C. would have been returned to Mother’s
custody because Father did not have custody of them. Although Father had
filed a motion to modify custody of D.C. and C.C. at the time of the fact-
finding hearing, DCS asserts that, in order for the juvenile court to modify
custody, it first had to adjudicate D.C. and C.C. as CHINS. Under Indiana
Code section 31-30-1-13, a juvenile court may modify custody for a child who is
the subject of a CHINS proceeding, and an order modifying custody survives
the termination of the CHINS proceeding. Ind. Code § 31-30-1-13(a), (d).
However, in order to modify custody, the juvenile court must have jurisdiction
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 17 of 20 over the child, which means the juvenile court must have determined the child
to be a CHINS and continued to a dispositional hearing. The dispositional
hearing is where the juvenile court finally determines the rights of the parties.
M.K. v. Ind. Dep’t of Child Servs., 964 N.E.2d 240, 244 (Ind. Ct. App. 2012).
Therefore, the juvenile court did not err in waiting to rule on Father’s motion to
modify custody until after the CHINS adjudication and disposition. We
conclude that the evidence supported Finding 14. The juvenile court’s
conclusion that the coercive intervention of the court was necessary was not
clearly erroneous.
II. Inappropriate Detention [30] Under Indiana Code section 31-34-5-3,
(a) The juvenile court shall release the child to the child’s parent, guardian, or custodian. However, the court may order the child detained if the court makes written findings of fact upon the record of probable cause to believe that the child is a child in need of services and that:
(1) detention is necessary to protect the child; . . . .
Ind. Code § 31-34-5-3(a)(1). Father argues that the juvenile court erred when it
ordered and continued the detention of D.C. and C.C. throughout the CHINS
proceedings. He asserts that, in each of the orders for detention, the juvenile
court stated that detention was being ordered for the protection of D.C. and
C.C., but that the juvenile court did not state why D.C. and C.C. needed
protection while in Father’s care. Father contends that the juvenile court
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 18 of 20 unnecessarily detained D.C. and C.C. in violation of the Indiana Code and his
constitutional rights.
[31] Initially, we note that Father fails to cite to any portion of the record where he
raised this issue with the juvenile court or objected to the continued detention of
D.C. and C.C. During the CHINS proceedings, Father never objected to the
detention order or to the lack of findings to support such detention. Issues not
raised at the trial court are waived on appeal. In re B.R., 875 N.E.2d at 373
(citing Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006)). “In order to
properly preserve an issue on appeal, a party must, at a minimum, ‘show that it
gave the trial court a bona fide opportunity to pass upon the merits of the claim
before seeking an opinion on appeal.’” Cavens, 849 N.E.2d at 533 (quoting
Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004)). We, therefore, find
this issue to have been waived on appeal.
[32] Waiver notwithstanding, we will address Father’s argument. Although Father
contends that the juvenile court’s order of detention deprived him the “right to
establish a home and to parent both of his children,” the evidence shows, and
Father concedes, that D.C. and C.C. have remained in his care and physical
custody throughout the CHINS proceedings. Appellant Father’s Br. at 27.
Father has not pointed to any instance in the record where the juvenile court’s
order interfered with his parenting of D.C. and C.C. Therefore, he has not
shown that he was harmed by the juvenile court’s detention orders.
[33] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 19 of 20 May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-JC-208 | November 7, 2016 Page 20 of 20