MEMORANDUM DECISION FILED Aug 16 2016, 8:54 am
Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals and Tax Court regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson INDIANA DEPARTMENT OF Marion County Public Defender Agency CHILD SERVICES Appellate Division Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Danielle L. Gregory Robert J. Henke Indianapolis, Indiana David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of J.C., Minor August 16, 2016 Child, A Child In Need of Court of Appeals Case No. Services, 49A02-1601-JC-11 B.T., Appeal from the Marion Superior Court Appellant-Respondent, The Honorable v. Marilyn A. Moores, Judge The Honorable Roseanne Ang, Magistrate Indiana Department of Child Services, Trial Court Cause No. 49D09-1509-JC-2764 Appellee-Petitioner, and
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 1 of 28 Child Advocates, Inc., Co-Appellee-Guardian ad Litem.
Kirsch, Judge.
[1] B.T. (“Mother”) appeals the juvenile court’s adjudication of her child, J.C.
(“Child”), as a Child in Need of Services (“CHINS”).1 Mother raises the
following three restated issues:
I. Whether the juvenile court erred by admitting certain evidence, over Mother’s objection, and by refusing to admit other evidence offered by Mother;
II. Whether the juvenile court erred when it continued Child’s detention and removal from Mother’s care during the proceedings; and
III. Whether the Indiana Department of Child Services (“DCS”) presented sufficient evidence to support the juvenile court’s determination that Child was a CHINS.
1 Child’s father does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 2 of 28 [2] We affirm.
Facts and Procedural History [3] Mother is the biological parent of Child, born in 2008, and he is her only child.
In 2015, the two of them were living in an apartment in Indianapolis, Indiana.
At some time prior to the current case, Mother had been diagnosed with mood
swings and paranoia and was prescribed Risperidone. Mother became involved
with DCS in 2013 because she was not compliant with her medications and
therapy.
[4] DCS filed a CHINS petition in August 2013, alleging:
[Mother] has mental health issues that have not been adequately addressed and that seriously hinder her ability to appropriately care for the child. [Mother] has been having delusional thoughts, and she was recently placed under immediate detention. [Mother] reported that she is not currently taking any medication, and she has not taken necessary action to adequately address untreated mental health needs.
DCS Ex. 3. Mother admitted that she was unable to properly supervise Child
due to untreated mental health issues and that intervention of the court was
necessary to ensure his safety and well-being. DCS Ex. 2. The juvenile court
adjudicated Child a CHINS. The 2013 DCS case was closed in February 2015.
[5] On September 15, 2015, Mother was at the property management office of her
apartment complex, and while there, she complained to the management that
her neighbors were loud and disturbing. She told the office that she could hear
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 3 of 28 sexual activities and music. Ultimately, the management staff called police for
Mother concerning her noise complaints, and thereafter, Mother returned to her
apartment.
[6] Indianapolis Metropolitan Police Department (“IMPD”) Officers Brian Meeks
(“Officer Meeks”) and David Waterman (“Officer Waterman”) responded to a
“disturbance” call, or what dispatch indicated had been received as a
“harassment report.” Tr. at 5, 32. Officer Meeks arrived at the scene and was
talking to two property management employees when Officer Waterman
arrived. Officers Meeks and Waterman knocked on Mother’s door and spoke
to Mother.
[7] She reported that she was “hearing sounds being pumped into her apartment of
a pornographic nature.” Tr. at 6; DCS Ex. 1. She reported that she had moved
three times recently and that “the same person has been moving to follow her to
continue to pump in the sounds to her apartment.” Tr. at 6. She told the
officers that once she determined who was pumping the noise into her
apartment, she would physically harm them “to get them to stop.” Id. at 30.
The officers did not hear any sexual or other noises while they were there.
While speaking to the officers, Mother was “very angry” and “yelling loudly in
a steady elevated pitch.” Id. at 10. At one point, Mother looked away and
appeared to be speaking to someone who was not there – “an invisible entity” –
“mumbling something under her breath about demons.” Id. at 10-11, 30. The
officers were preparing to leave when Mother called Child to the door and
asked him if he heard the noises, too. Soon thereafter, Mother “slammed the
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 4 of 28 door” on the officers. Id. at 8. The officers believed Mother was in an “altered
mental state” and were concerned about Child’s welfare, so they contacted
DCS. Id. Officer Meeks thereafter conducted a “report search” of police
records and found that there were five instances involving Mother calling the
police since February 2015. DCS Ex. 1. One in July 2015 resulted in Mother
being taken into “immediate detention[.]” Id.
[8] Later in the day on September 15, Officer Meeks received a call from DCS
assessment case manager Amanda Cristina Gonzalez (“FCM Gonzalez”), who
asked Officer Meeks to meet her at Mother’s home to assist her with making
contact with Mother. FCM Gonzalez knocked and identified herself, but
Mother refused to open the door. Mother spoke through the door, in an
elevated tone. Mother told FCM Gonzalez that Child was safe, and Mother
opened the door twice to allow FCM Gonzalez to see Child, but she would not
let FCM Gonzalez or the police enter her apartment. Mother “instructed”
Child to tell FCM Gonzalez that he was safe. Id. at 48. During the
conversations with Mother through the closed door, FCM Gonzalez heard
Mother make what FCM Gonzalez deemed to be unusual comments, some of a
religious nature, such as “In Jesus name get off my doorstep” and state that she
was a God-fearing and “good Christian woman,” and she heard Mother state
something about “a demon.” Id. at 50, 53.
[9] After about forty-five minutes, Mother opened the door. She allowed FCM
Gonzalez into her home but insisted that the police not enter. She attempted to
close the door on the officers, but they pushed the door open and made “a
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 5 of 28 forced entry” into her apartment. Id. at 40. Mother backed away from the
door, and Officer Meeks placed Mother in handcuffs because he believed she
was still in an “altered mental state” and that there was going to be a struggle.
Id. at 17. Thereafter, Mother told FCM Gonzalez that she was a diagnosed
paranoid schizophrenic and had been prescribed Risperidone, 1 mg taken at
night before bed. Mother also said that she “often” takes 2 mg because that is
what they gave her at the hospital. DCS Ex. 1.
[10] FCM Gonzalez was concerned that Mother’s medication was not controlling
her mental health issues and felt Mother was in a “delusional state of mind.”
Tr. at 54. Mother was transported to St. Vincent Hospital (“the Hospital”) for
an assessment, and Child was removed from Mother’s care.
[11] Two days later, on September 17, 2015, DCS filed a CHINS petition, asserting
that Mother’s mental health issues were affecting her ability to safely parent
Child. “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” Appellant’s App. at 27-29.
Specifically, the Petition alleged:
1. [Mother] has failed to provide the child a safe and secure home free from untreated mental health concerns.
2. [Mother] was taken to [Hospital] due to acting erratic and hearing voices and pornographic noises, leaving the child without a caregiver.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 6 of 28 3. [Mother] is diagnosed with schizophrenia and is not properly taking her medication.
4. [Mother’s] mental health concerns limit her ability to safely parent the child.
5. [Father] is the alleged father of [Child] and his whereabouts are currently unknown. [Father] is unable to ensure his child’s safety while in [Mother’s] care.
6. The family has DCS history to include a prior CHINS case.
7. Due to the foregoing, the coercive intervention of the court is necessary to ensure the child’s safety and well being.
Id. at 28.
[12] The initial/detention hearing was held on September 17, 2015. Mother
appeared in person and with counsel, and Mother requested that Child be
returned to her care. The juvenile court denied Mother’s request and continued
Child’s placement with Maternal Grandmother and appointed a guardian ad
litem (“the GAL”). The juvenile court also directed DCS to verify Child was
enrolled in a valid educational program.2 Id. at 42.
[13] During the course of the CHINS proceedings, DCS permanency caseworker
Vardella Paige (“FCM Paige”) met with Mother to assess the family’s needs
2 Prior to removal, Mother had been homeschooling Child.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 7 of 28 and to consult with her about counseling and mental health services. FCM
Paige referred Mother and Child to Cummins Mental Health (“Cummins”) for
assessments and offered to assist Mother with her referral. Mother told FCM
Paige that she would handle her own referral for services. Tr. at 77. FCM
Paige recommended home-based therapy for Child and a home-based case
manager to ensure that Mother took her medications, as well as to ensure that
Mother was equipped with appropriate parenting techniques.
[14] In September, Mother appeared in person and by counsel for a pretrial hearing.
Mother’s mother, Lisa Coach (“Grandmother”), also attended the hearing.
Mother requested that Child be returned to her care and testified that she was
compliant with her treatment and medications. DCS and the GAL opposed her
request, with the GAL stating that Mother may take “double doses” of her
medication. Appellant’s App. at 55-56. The juvenile court continued the
placement of Child in relative care, but authorized the return of Child to
Mother upon positive recommendations of DCS, the GAL, and service
providers. Id. at 56-57. At two subsequent detention hearings, the juvenile
court continued Child in relative care.
[15] A fact-finding hearing occurred on October 14, 2015. FCM Gonzalez testified
that, upon receiving the September 15 report from law enforcement, DCS
determined that the matter warranted “immediate attention” due to Mother’s
reported “delusional” state of mind and because Mother was Child’s only
caregiver. Tr. at 46. The case was assigned to FCM Gonzalez, who, pursuant
to policy for “one-hour response time” cases, contacted law enforcement to
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 8 of 28 request their presence when she made contact with Mother. Id. FCM
Gonzalez testified that she arrived, knocked, identified herself, and explained
that she was there to check on Child’s safety, but Mother was unwilling to open
the door and speak directly with her for approximately thirty to forty-five
minutes. FCM Gonzalez could hear Mother “insist[ing]” to Child that he tell
FCM Gonzalez that he felt safe in the home. Id. at 51. Mother opened the
door slightly on two occasions, one of which was to show Child to FCM
Gonzalez. Mother “instructed” Child to say he was safe. Id. at 48.
[16] Eventually, Mother opened the door a third time, and police pushed the door
and handcuffed Mother. Id. at 49. FCM Gonzalez testified that Mother’s
demeanor changed, and she became calmer. As they talked, FCM Gonzalez
observed Mother appear to be speaking to someone over her shoulder, although
no one was there. Mother told FCM Gonzalez that the pornographic sounds
had been going on “for an extended period of time” and that she felt the sounds
had followed her to their current home. Id. at 53. FCM Gonzalez also testified
that, while at Mother’s apartment on September 15, she had examined
Mother’s Risperidone bottle, and at that time, it contained approximately
seventeen pills and had been due for a refill in July 2015. Based on the pill
count, FCM Gonzalez determined that Mother already should have refilled her
prescription. Id. at 59. FCM Gonzalez opined that Mother would benefit from
a mental health evaluation to ensure she was receiving and participating in
recommended forms of treatment to manage her diagnosed issues. She also
recommended having someone in the home to monitor Mother for a period of
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 9 of 28 time. FCM Gonzalez testified that in her opinion coercive intervention of the
court was necessary. Id.
[17] FCM Paige also testified at the fact-finding hearing. Although FCM Paige had
referred Mother for services at Cummins for an assessment and had
recommended home-based therapy for Child, those services for Child and
Mother had not yet started. Id. at 77-78. FCM Paige also testified that she
believed Mother should receive home-based case management services “to
assist with making sure that [Mother] is taking her medication” and “parenting
techniques are being used and utilized.” Id. at 81-82. FCM Paige testified that
she believed those services were needed and that, if those services were not
implemented, she would have continued concerns about Child’s well-being. Id.
FCM Paige further testified that she believed coercive intervention of the court
was necessary to get Mother to obtain the services for Child. Id. at 87. FCM
Paige acknowledged at the hearing that she was not present at Mother’s
apartment on September 15, 2015. She also acknowledged that according to
DCS reports, the home was clean and Child was properly dressed and had no
visible injuries. She did not dispute that, as Mother claimed, Mother was
released from the Stress Center that same night.
[18] Officers Meeks and Waterman testified at the hearing. Officer Waterman
testified that Mother reported “somebody or people [were] following her
around the apartment complex and moving in above her and playing loud
sexual noises through the vents into her apartment[,]” and that she “also
mentioned something about demons.” Id. at 34. Officer Meeks testified
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 10 of 28 likewise. During Officer Meeks’s testimony, DCS offered into evidence the
police report that he had prepared of the September 15 incident. Mother’s
counsel objected to the report as hearsay, but the juvenile court admitted the
report over her objection. DCS also offered the 2013 CHINS petition and
order, to which Mother objected on relevance grounds and that, additionally,
the documents were prejudicial. The juvenile court admitted the documents
over Mother’s objections.
[19] Mother also testified at the hearing, stating that she had been diagnosed “with .
. . paranoia” and takes Risperidone. Id. at 101. She denied having reported
that she did not need her medications, and she testified that she had been to the
doctor recently, takes the Risperidone “consistently,” and also maintains her
prescription refills. Id. at 115. As to the 2013 CHINS proceedings, when asked
if she had admitted that her son was in need of services, she replied, “I had
to[,]” and she acknowledged that “back then” she was not taking her
medication. Id. at 102.
[20] Mother testified that, on September 15, she was taken by a police van to the
Hospital, where she was assessed and monitored, then released the same night,
but escorted directly to the Stress Center. Mother testified that she spoke to a
therapist there, and after some monitoring, the therapist called Mother a cab
and sent her home. Mother moved to admit into evidence the certified copies
of her medical records from the Hospital and the Stress Center. DCS objected,
arguing that, while the certification might authenticate the documents, each
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 11 of 28 contained hearsay and should not be admitted. The juvenile court excluded the
records.
[21] On cross-examination, DCS sought to ask Mother about her contact with law
enforcement occurring after the prior CHINS action closed and before the
September 15, 2015 incident. Mother objected on relevance grounds, which the
juvenile court overruled. During DCS’s examination, Mother was questioned
about, and denied, calling police from her car to report being followed and also
reporting to police that she had been surrounded and harassed at church.
Mother acknowledged that, during the relevant time period, police had
contacted her with regard to a report in which a woman complained to police
that Mother had called her twenty-five times or more and that Mother had told
the woman that she had received a message from God that she would have to
kill the woman; Mother acknowledged that police had contacted her to discuss
the matter, but she denied having made the multiple calls to the woman or
threatening her. Upon further cross-examination, Mother denied that she cut a
hole in the wall between her apartment and the one next door, but she admitted
to talking to police about the matter.
[22] At the time of the fact-finding hearing, Child was in the care of Grandmother,
with Mother having daily supervised visitation with Child. At the conclusion
of the hearing, Mother requested that Child be placed back in her care. DCS
and the GAL opposed her request. However, due to Grandmother’s 3:00 p.m.
to 12:00 a.m. work schedule, which required Child to be taken to daycare and
then an aunt’s home until Grandmother came to get him after work, the parties
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 12 of 28 discussed an alternative plan to avoid shuffling Child at that late hour.
Following the hearing, the juvenile court issued an order that continued
removal of Child and his placement in relative care. The order also authorized
Mother to provide childcare to Child at Grandmother’s home during
Grandmother’s work hours, but directed that Mother could not leave the home
with Child and required that home-based services be in place prior to this
occurring. Appellant’s App. at 67. DCS was to “notify the court if there is any
concern regarding the safety and wellbeing of the child.” Id.
[23] On November 5, 2015, DCS filed an emergency motion for change in visitation
from unsupervised to supervised and for an authorization for a change in
placement to another relative, attaching to the motion an affidavit prepared by a
family case manager. The affidavit averred that DCS received notification that
Mother had contacted police on November 1, that police had transported
Mother to a hospital for psychiatric evaluation, and that DCS had been
informed that Grandmother “no longer felt comfortable allowing [Mother] to
be in her home.” Appellant’s App. at 72. The emergency motion asserted that
DCS had concerns “about whether [Mother] is properly taking her psychiatric
medications and about the safety of [Child] while in her care.” Id. at 70. DCS
requested that Child be placed in other relative care during Grandmother’s
work hours and that Mother’s parenting time be supervised. Id. at 71. The
juvenile court granted DCS’s request that same day. A week later, Mother filed
a motion in opposition to DCS’s motion, which the court set for hearing.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 13 of 28 [24] On December 1, the juvenile court entered its order adjudicating Child a
CHINS. Id. at 90-91. It also heard and denied Mother’s motion opposing
change of placement, denying Mother’s request to have Child placed with her
and ordering that her visitation remain supervised. The matter proceeded to
disposition on December 15, 2015, after which the juvenile court issued a
parental participation order and ordered Mother to participate in home-based
case management and to continue her individual therapy and medication
management with Cummins. Id. at 105. Mother now appeals.
Discussion and Decision
I. Admission and Exclusion of Evidence [25] Mother asserts that the juvenile court abused its discretion when it (1) admitted
the IMPD police report concerning the September 15 incident and the 2013
CHINS petition and adjudication, and (2) excluded her medical records from
the Hospital and the Stress Center. We review a trial court’s decision to admit
or exclude evidence for an abuse of discretion. In re S.W., 920 N.E.2d 783, 788
(Ind. Ct. App. 2010). An abuse of discretion occurs if a trial court’s decision is
clearly against the logic and effect of the facts and circumstances before the trial
court. Id. A claim of error in the admission or exclusion of evidence will not
prevail on appeal unless a substantial right of the party is affected. Ind.
Evidence Rule 103(a). “[E]rrors in the admission of evidence are to be
disregarded as harmless error unless they affect the substantial rights of a
party.’” In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). To determine
whether the admission of evidence affected a party’s substantial rights, we
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 14 of 28 assess the probable impact of the evidence upon the finder of fact. Id.
Additionally, any error caused by the admission of evidence is harmless error
for which we will not reverse a conviction if the erroneously admitted evidence
was cumulative of other evidence appropriately admitted. In re S.W., 920
N.E.2d at 788.
A. Admission of DCS Evidence
[26] Here, when DCS offered Officer Meeks’s police report into evidence, Mother
objected on the basis that it contained hearsay, specifically arguing that the
report referred to statements made by Mother while police were at her
apartment. “It talks about [Mother] yelling and saying different things” to
prove the truth of the matter that Mother “was in some kind of altered state.”
Tr. at 19. The juvenile court, observing that the hearsay being objected to was
Mother’s own statements, overruled the objection and admitted the report into
evidence. We find no error in that decision.
[27] Indiana Evidence Rule 801(c) provides that hearsay is a statement that is not
made by the declarant while testifying at trial or hearing that is offered into
evidence to prove the truth of the matter asserted. Indiana Evidence Rule
801(d) identifies statements that are not hearsay, including an opposing party’s
statement that is offered against the opposing party. Evid. R. 801(d)(2)(A).
Here, Mother’s statements to police and those made by her in their presence
were not hearsay, as they were statements made by Mother and offered against
Mother at her trial.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 15 of 28 [28] With regard to the 2013 CHINS documents, Mother objected when the CHINS
petition and her admission to the allegations were offered into evidence.
Mother asserted that those documents were not relevant to the present matter,
i.e. whether she admitted that “back then” her son was in need of services was
not relevant to the current matter, and further, were highly prejudicial and
inflammatory. Tr. at 95. DCS responded that the evidence was relevant
because both the old case and the current one concern Mother’s “serious mental
health issues,” and the 2013 documents showed “a continuity of this problem
or pattern in terms of maintaining her mental illness and thus protection and
safety for [Child].” Id. at 95-96. The juvenile court admitted the documents
over her objections.
[29] On appeal, Mother asserts such evidence was not relevant and was prejudicial.
Mother argues that what happened in 2013 had no relevance to the present
matter, given that in 2013 she admitted to not properly taking her medication,
but in the present case, “even evidence offered by [DCS] indicated that Mother
consistently took her medications as prescribed by her doctor.” Appellant’s Br.
at 39. Mother’s representation that DCS’s evidence “indicated that Mother
consistently took her medications” is inaccurate. Mother’s citations to portions
of the transcript are references to FCM Gonzalez’s testimony at the fact-finding
hearing stating that Mother had told her that she was taking her medication.
FCM Gonzalez never testified that Mother was taking her medications as
prescribed. To the contrary, FCM Gonzalez testified that she was concerned
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 16 of 28 Mother needed to be evaluated and monitored to be sure she was taking her
medication properly and consistently.
[30] Indiana Code section 31-34-12-5 provides:
Evidence that a prior or subsequent act or omission by a parent, guardian, or custodian injured or neglected a child is admissible in proceedings alleging that a child is a child in need of services to show the following:
(1) Intent, guilty knowledge, the absence of mistake or accident, identification, the existence of a common scheme or plan, or other similar purposes.
(2) A likelihood that the act or omission of the parent, guardian, or custodian is responsible for the child’s current injury or condition.
As DCS points out, “[a] parent’s character is at issue in CHINS proceedings.”
Appellee’s Br. at 21. Indiana courts “have held that evidence of a parent’s prior
involvement with [DCS], . . . including CHINS petitions filed on behalf of [the
parent’s] children, was admissible in a CHINS proceeding as character evidence
under Indiana Evidence Rule 405.”3 Matter of D.G., 702 N.E.2d 777, 779 (Ind.
Ct. App. 1998). Here, Mother has failed to meet her burden to show that
admission of the evidence prejudiced her substantial rights, and thus she has
3 Indiana Evidence Rule 405(b) states: When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 17 of 28 failed to establish that the juvenile court abused its discretion when it admitted
the 2013 CHINS documents.
B. Exclusion of Mother’s Evidence
[31] Mother next asserts that the juvenile court should have admitted her certified
medical records from the Hospital and the Stress Center because they qualified
under the business records exception to the hearsay rule. At the fact-finding
hearing, during Mother’s testimony, Mother’s counsel offered the certified
Stress Center records as Exhibit A and the certified Hospital records as Exhibit
B. Each exhibit included an affidavit from the custodian of records, stating that
the records were true reproductions, made and kept in the regular course of
business. Appellant’s Exs. A and B. DCS objected on the basis that the records
constituted hearsay. Mother argued that the records qualified for admission
under the business records exception, but DCS maintained that the
“certification authenticates the records, but does not make the contents
admissible, they are hearsay.” Tr. at 120. The juvenile court excluded the
records. Mother made an offer of proof, indicating that the records would show
that Mother suffered from paranoia, but that she did not present a danger to
herself or others and was released. Id. at 127-29.
[32] Hearsay is an out-of-court statement offered into evidence to prove the truth of
the matter asserted, and it is inadmissible unless it falls under a recognized
exception. Evid. R. 801(c), 802. One such exception exists for records that
satisfy the requirements the business records exception, codified in Indiana
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 18 of 28 Rule of Evidence 803(6), which provides that the following are not excluded
even though the declarant is available as a witness:
Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
“In essence, the basis for the business records exception is that reliability is
assured because the maker of the record relies on the record in the ordinary
course of business activities.” In re Termination of Parent-Child Relationship of
E.T., 808 N.E.2d 639, 643 (Ind. 2004).
[33] On appeal, Mother contends the records were admissible under the business
records exception and that the denial of admission prejudiced her “because the
documents contained medical information, events, conditions, opinions,
and/or diagnoses, made on September 15, 2015, about the state of Mother’s
mental health condition made by mental health providers[.]” Appellant’s Br. at
40. Our Supreme Court has stated, “Although Rule 803(6) accommodates the
inclusion of ‘opinions’ in business records our courts have long recognized, at
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 19 of 28 least in the context of medical or hospital records, that the expertise of the
opinion giver must be established.” In re E.T., 808 N.E.2d at 644 (citing Fendley
v. Ford, 458 N.E.2d 1167, 1171 n.3 (Ind. Ct. App. 1984) (“Expressions of
opinion within medical or hospital records historically have not been admissible
under the business records exception because their accuracy cannot be
evaluated without the safeguard of cross-examination of the person offering the
opinion.”)).
[34] Assuming without deciding that the juvenile court abused its discretion by not
admitting the records of the Hospital and the Stress Center, Mother has not
shown that she was prejudiced. Mother testified that she was admitted and
released from the Hospital the same day and was escorted to the Stress Center,
where she met with a therapist, who after conversing and monitoring Mother,
called a taxicab for Mother and sent her home. The excluded records were
cumulative of Mother’s testimony, and she has failed to show that her
substantial rights were affected by the exclusion of the offered evidence.
II. Detention [35] Mother contends that the juvenile court “inappropriately detained” Child in
violation of the Indiana Code and Child’s constitutional rights. Appellant’s Br.
at 35. Here, Mother requested Child’s return to her care at the September 17,
2015 initial hearing, at a September 29, 2015 pre-trial hearing, and at the
October 14, 2015 fact-finding hearing. Mother asserts that “each time, the trial
court continued the removal and detention of [Child]” by a “template order,”
which stated that it was in Child’s best interests, that the removal was to protect Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 20 of 28 him, and that it would be contrary to his health and welfare to return to
Mother, and that reasonable efforts had been offered to prevent the need for
removal. Id. at 36. On appeal, she argues that “[w]hile the trial court used the
necessary language as required by Indiana Code,” it did not include facts to
support its findings. Id. at 37.
[36] Initially, we observe that Mother did not challenge the detention below.
Although she asked that care of Child be returned to her, she did not otherwise
allege or seek redress of what she now claims was error. The failure to raise
claimed error to the trial court results in waiver. McBride v. Monroe Cnty. Office of
Family & Children, 798 N.E.2d 185, 194-95 (Ind. Ct. App. 2003) (pursuant to
general rule that issue cannot be raised for first time on appeal, procedural due
process claim in CHINS case waived when raised for first time on appeal).
Furthermore, although Mother alleges violation of “constitutional rights,” she
makes no argument in that regard, and has waived any constitutional challenge
for failure to make a cogent argument or provide citation to authority. Ind.
Appellate Rule 46(A)(8). Likewise, although Mother asserts that the juvenile
court’s interim detention findings were improper because they contained the
necessary statutory language but failed to include supporting facts, she provides
no supporting authority for her position that inclusion of such factual support is
necessary, and therefore, she has waived this argument as well. Id.
[37] Waiver notwithstanding, we find no error in the juvenile court’s decision to
continue Child’s removal from Mother’s care. Mother argues, among other
things, that she was released from the Hospital and from the Stress Center,
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 21 of 28 which made her available to take care of Child, and, further, “Mother was
taking her medication as prescribed, . . . [and] was seeking treatment and
therapy as recommended by her doctor[.]” Appellant’s Br. at 37. However, the
fact that Mother testified to consistently and properly taking her prescribed
medication does not make it so. The FCM and police officers testified to
Mother murmuring about demons and referencing Jesus’s name and “calling on
higher powers[.]” Tr. at 15. As of the time of the fact-finding hearing, the
record reflects that both DCS and the GAL remained opposed to returning
Child to Mother’s sole and unsupervised care unless and until home-based
services were implemented, in order to provide that Child had an outlet to
address issues and to ensure that Mother was receiving proper care to manage
her mental health issues and, further, was taking whatever medication was
prescribed. We find no error in the juvenile court’s continued detention of
Child and his placement in relative care.
III. Sufficiency of the Evidence [38] Mother contends that the juvenile court’s adjudication of Child as CHINS is
clearly erroneous. We have recognized that parents have a fundamental right
to raise their children without undue influence from the State, but that right is
limited by the State’s compelling interest in protecting the welfare of children.
In re Ju.L., 952 N.E.2d 771, 776 (Ind. Ct. App. 2011). Indiana Code Section 31-
34-1-1 provides that a child is a child in need of services if, before the child
becomes eighteen 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 22 of 28 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. “A CHINS adjudication focuses on the condition of
the child.” In re Des.B, 2 N.E.3d at 835. A CHINS adjudication does not
establish culpability on the part of a particular parent; rather, the purpose of a
CHINS adjudication is to protect children, not punish parents. Id. The CHINS
statutes do not require that a trial court wait until a tragedy occurs to intervene.
In re Ju.L., 952 N.E.2d at 776.
[39] The DCS has the burden of proving by a preponderance of the evidence that a
child is a CHINS. Ind. Code § 31-34-12-3; In re Ju.L., 952 N.E.2d at 776.
When reviewing the sufficiency of the evidence to support a CHINS
adjudication, we consider only the evidence favorable to the judgment and the
reasonable inferences raised by that evidence. In re Des.B, 2 N.E.3d at 836.
This court will not reweigh evidence or judge witnesses’ credibility. Id.
[40] Where, as here, a party is appealing from a negative or adverse judgment, the
standard of review on appeal is the clearly erroneous standard. In re Ju.L., 952
N.E.2d at 776. Under the clearly erroneous standard, we will set aside the trial
court’s findings and conclusions only when the record contains no facts or
inferences supporting them, and we are left with a firm conviction that a
mistake has been made. Id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 23 of 28 a. Findings of Fact
[41] Mother contends that the evidence does not support several of the juvenile
court’s findings, namely Findings 1, 7, and 9. Finding No. 1 states Child’s date
of birth, which Mother claims is “not supported by appropriate evidence.”
Appellant’s Br. at 25. Child’s date of birth appeared in the 2013 CHINS petition,
which we have already found was properly admitted. Furthermore, Mother
included in her Appendix the CHINS petition that was the basis of DCS’s
current involvement, which contains Child’s date of birth. Appellant’s App. at
27. Thus, we reject Mother’s claim that Finding 1 was not supported by the
evidence.
[42] Finding No. 7 states: “During this encounter, [Mother] was observed
whispering a comment about demons and appeared to be looking at and
speaking to someone who was not there.” Id. at 90. Mother asserts that this
finding was “not supported by the evidence as a whole.” Appellant’s Br. at 26.
Again, we reject Mother’s claim and find that there was sufficient evidence to
support this finding, as the two IMPD officers as well as FCM Gonzalez
testified to hearing Mother murmur about “demons” and appear to speak to
someone over her shoulder, although no one was there. Tr. at 11, 30, 34, 50.
Mother’s actual argument appears to be, not that there was no evidence in
support of Finding No. 7, but rather that “[w]hat’s missing from this finding is
the fact that Mother was relying upon her faith and engaging in the power of
prayer,” noting that [t]here are over fifty vers[e]s in . . . the Bible which
specifically mention calling upon God and Jesus” and urging that Mother’s
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 24 of 28 prayer should be considered “a call to summon strength from within and from
her Savior.” Id. at 26-27. We will not reweigh the evidence on appeal, and we
find the evidence presented supported Finding No. 7.
[43] Finding No. 9 states: “On September 15, 2015, [Mother] informed FCM
Gonzalez that she was taking this medication as prescribed. [Mother] also
informed FCM Gonzalez that she often takes 2 mg of Risperidone because that
is what they gave her at the hospital” Appellant’s App. at 90. As with Finding
No. 1, Mother claims Finding No. 9 is not supported by “appropriate
evidence,” because the juvenile court relied on “inappropriately admitted
evidence,” namely Officer Meeks’s police report, where he reports hearing
Mother tell FCM Gonzalez that she sometimes takes 2 mg of her medicine.
Having found that the police report was properly admitted into evidence, we
find that Finding No. 9 was supported by sufficient evidence.
b. Conclusions of Law
[44] Mother argues that Conclusion Nos. 12 and 13 are not supported by
appropriate evidence or findings. They state, respectively:
[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. On September 15, 2015, [Mother] was in an altered state of mind while being the sole caregiver for [Child] and admitted to often taking more medication than has been prescribed.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 25 of 28 [Child] needs care, treatment, or rehabilitation that he is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court. The [DCS] and this Court’s involvement are necessary to provide for [Child] until such time frame as [Mother] is able to achieve stability and maintain the mental health treatment she requires.
Appellant’s App. at 91.
[45] Mother urges that (1) “[b]y all accounts, [she] provided appropriate food,
clothing, shelter, and education for [Child],” (2) there was no evidence
regarding “the need [for] or absence of medical care for [Child],” and (3) she
had only “very brief unavailability” to parent Child while she was at the
Hospital and the Stress Center on September 15, 2015. Appellant’s Br. at 30, 31.
The core issue, however, is Mother’s mental health and her treatment of it, and
with regard to that Mother maintains: (1) “The uncontroverted evidence []
indicates Mother maintained her mental health treatment and medications prior
to and during [DCS]’s involvement[,]” and (2) “She was able to address her
own mental health needs without the assistance of [DCS] and indicated her
willingness to continue doing so without their help.” Id. at 31. The evidence
does not support Mother’s claims.
[46] Contrary to Mother’s claim of “uncontroverted evidence” showing that she was
maintaining her mental health treatment, the evidence was that Officers Meeks
and Waterman heard Mother “calling to higher powers,” murmur about
“demons,” and allege that person or persons were following her to multiple
residences and piping pornographic noises into her apartment. Tr. at 11, 15, 30,
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 26 of 28 34. FCM Gonzalez similarly heard Mother speak over her shoulder, although
no one was there, and “instruct” Child to tell FCM that he was safe and fine.
Id. at 48. Officer Meeks, in conducting a search of police reports, found that
Mother in the span of six months or so had contacted police at least five times
about being followed, harassed, or hearing loud noises. Officer Meeks heard
Mother report to FCM Gonzalez that she sometimes took a double dose of her
prescribed medication. FCM Gonzalez and the GAL advised the juvenile court
that they did not recommend that Child be returned to Mother until she
completed assessment and home-based case management was put into place
both for Child and for Mother. FCM Paige testified that she was concerned
about the home being unstable, given the repeated police calls, and she
recommended a home-based therapist and that Mother continue medication
management with Cummins. In November 2015, the juvenile court changed
Mother’s parenting time with Child from unsupervised to supervised after DCS
received a report that Mother had contacted police and had been taken for a
psychiatric evaluation. Appellant’s App. at 70-71, 94. On appeal, DCS
summarizes the situation:
DCS does not dispute Mother’s willingness to parent Child[;] the question was whether she could do so safely. Here the trial court concluded that she could not without some form of coercive intervention. The record supports that.
Appellee’s Br. at 42.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 27 of 28 [47] We agree. The record supports the juvenile court’s conclusion that Child’s
physical or mental condition was seriously impaired or seriously endangered as
a result of Mother’s inability, refusal, or neglect to supply the child with
necessary food, clothing, shelter, medical care, education, or supervision and its
conclusion that Child needed care, treatment, or rehabilitation that he was not
receiving and was unlikely to be provided or accepted without the coercive
intervention of the court. Mother has failed to meet her burden to show that
the CHINS adjudication was clearly erroneous.4
[48] Affirmed.
[49] Riley, J., and Pyle, J., concur.
4 Mother notes that DCS could have pursued “other options,” such an “informal adjustment” pursuant to Indiana Code section 31-34-8-1, under which she would agree with DCS to participate in services while being monitored. Appellant’s Br. at 35. Mother does not indicate whether she raised or sought this option with the juvenile court, and we decline to address it on appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1601-JC-11 | August 16, 2016 Page 28 of 28