In the Matter of J.S. and M.S. (Minor Children), Children in Need of Services, and P.W. (Mother) and J.W. (Stepfather) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 8, 2019
• Docket: 18A-JC-1791
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 08 2019, 9:08 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Roberta Renbarger Curtis T. Hill, Jr. Renbarger Law Firm Attorney General Fort Wayne, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of J.S. and M.S. January 8, 2019 (Minor Children), Court of Appeals Case No. 18A-JC-1791 Children in Need of Services, Appeal from the Wells Superior Court and The Honorable Kenton W. P.W. (Mother) and J.W. Kiracofe, Judge (Stepfather), Trial Court Cause Nos. Appellants-Respondents, 90C01-1802-JC-2, -3

v.

Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 1 of 13 Crone, Judge.

Case Summary [1] P.W. (“Mother”) and J.W. (“Stepfather”) (collectively “Appellants”) appeal a

trial court order adjudicating Mother’s sons, J.S. and M.S. (collectively “the

Children”), as children in need of services (“CHINS”). They challenge the

sufficiency of the evidence to support the CHINS determination and raise a due

process argument concerning J.S.’s placement. We affirm.

Facts and Procedural History [2] Following her divorce from P.S. (“Father”),1 Mother was awarded physical

custody of J.S. (born in 2004) and M.S. (born in 2008). In 2017, the Children

were living with Mother and Stepfather. Early that year, Appellants discovered

that J.S. had been viewing online pornography. In November 2017, M.S.

disclosed to Appellants that J.S. had been molesting him for a few months.

When Stepfather confronted J.S. with M.S.’s allegations, he became physical

with J.S., knocking him off his feet. Appellants immediately contacted Father,

who took J.S. to his house temporarily. Meanwhile, Appellants decided that

the Children would not be left together except under supervision and that they

would install alarms on their bedroom doors. In the middle of January, Father

1 Father is not participating in this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 2 of 13 called Weber and Associates to schedule initial intake appointments for

counseling for the Children. Tr. Vol. 2 at 23.

[3] On January 20, 2018, the Indiana Department of Child Services (“DCS”)

received a report that J.S. had molested M.S. over a three-month period and

that Mother had failed to seek services for the Children. That same day, DCS

Family Case Manager (“FCM”) Lindsey Feinberg visited Appellants’ home to

conduct an assessment. The Children were not home, and Appellants indicated

that they were both at Father’s house. When FCM Feinberg attempted to

discuss the allegations with Appellants, Stepfather told her that they would

neither speak to her nor allow her to interview the Children until they had

consulted their attorney. When she walked through the home, she saw no signs

of any alarms on the Children’s bedroom doors. Before she left, she completed

a safety plan specifying that Appellants must maintain contact with her, keep

the Children separated, and obtain counseling services for each child. The next

day, Stepfather contacted FCM Feinberg and told her about the pornographic

website that J.S. had been visiting. FCM Feinberg told Stepfather that per DCS

protocol, both boys needed to undergo a forensic interview.

[4] On January 22, 2018, FCM Feinberg contacted Mother, who told her that she

had set up counseling appointments for the Children at Weber and Associates.

Later that day, Stepfather told FCM Feinberg that the Children would be going

for counseling appointments at Phoenix and Associates (“Phoenix”). FCM

Feinberg reminded Stepfather about the Children’s need for forensic interviews,

and Stepfather told her that Appellants’ attorney (“Counsel”) would be

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 3 of 13 handling the scheduling of forensic interviews. FCM Feinberg also attempted

to contact Father but was unsuccessful.

[5] Meanwhile, Counsel contacted FCM Feinberg and indicated preferences

concerning the times, location, and personnel involved in conducting the

forensic interviews. Counsel also requested that there be no police presence at

the interviews, which DCS declined, and demanded that the interviews be

conducted after regular school hours. FCM Feinberg arranged the interviews at

the requested location, scheduled them for January 24, 2018, and notified

Appellants and Counsel. Stepfather indicated that he did not want the forensic

interviews to take place until the Children were in counseling. Counsel said

that the interviews were scheduled on too short of notice and wanted them to

be conducted at her law office instead. DCS denied the request but rescheduled

the interviews for February 1, 2018, at Appellants’ previously requested

location. The Children did not attend the forensic interviews as scheduled, and

DCS filed a motion to compel conduct.

[6] On February 5, 2018, the trial court issued orders to comply with the DCS

investigation. DCS rescheduled the forensic interviews for February 7, 2018.

Mother brought M.S. for his interview as scheduled, but J.S. did not attend his

interview. During M.S.’s interview, he disclosed that J.S. had repeatedly forced

him to perform oral sex on him, to the point that M.S.’s mouth hurt. He also

reported that J.S. performed anal intercourse on him and showed him a

pornographic video. M.S. indicated that J.S. had threatened him and ordered

him not to disclose the molestation. The assaults took place over a two- to

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 4 of 13 three-month period inside the Children’s house or inside a barn on their

property. M.S. also revealed that Stepfather had punched J.S. to the floor and

kicked him when he confronted J.S. about the sexual assault. He also revealed

that on previous occasions when Stepfather had spanked him, he left red marks

and it hurt to sit down.

[7] The day after M.S.’s forensic interview, DCS filed a petition to remove and

detain the Children. Meanwhile, FCM Feinberg made further attempts to

contact Father. The trial court granted DCS’s petition and signed an

emergency protective custody order for both boys, who were then taken from

their schools. J.S. was placed at Pierceton Woods in an inpatient treatment

program designed to prevent relapse by juvenile sex offenders. M.S. was placed

in foster care. That same day, Father returned FCM Feinberg’s call and

reported that he had not returned her previous phone calls because Appellants

had told him to have no contact with DCS. When asked, he told FCM

Feinberg that he had a brother and a sister who might serve as relative

placements.

[8] On February 9, 2018, DCS filed CHINS petitions as to J.S. and M.S. A few

days later, M.S. was removed from foster care and was placed with Father. He

participated in counseling at Phoenix, home-based services with Father, and

supervised visitation with Mother. In March 2018, DCS petitioned to change

J.S.’s placement to an inpatient program at Redwood due to a couple missed

medication incidents at Pierceton Woods. The court granted the petition

without a hearing, but after an investigation into the reasons for the missed

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 5 of 13 medication doses, J.S. was allowed to remain at Pierceton Woods, where his

caseworkers report that he is doing well and is advancing more rapidly than

most other juveniles in the program.

[9] After a multi-day factfinding hearing, on June 27, 2018, the trial court issued an

order with findings of fact and conclusions thereon adjudicating J.S. and M.S.

as CHINS. Following a July 9, 2018 dispositional hearing, Mother was

ordered to complete a parenting assessment and psychological evaluation and

to attend all scheduled visitations with the Children. Stepfather failed to attend

the July hearing and had his dispositional hearing in August. The dispositional

decree as to Stepfather is not included in the record. Appellants now appeal.

Additional facts will be provided as necessary.

Discussion and Decision

Section 1 – The evidence is sufficient to support the CHINS determination. [10] Appellants challenge the sufficiency of the evidence to support the CHINS

determination. When reviewing the sufficiency of evidence, we give due regard

to the trial court’s ability to assess the credibility of witnesses. In re Des.B., 2

N.E.3d 828, 836 (Ind. Ct. App. 2014). We neither reweigh evidence nor judge

witness credibility; rather, we consider only the evidence and reasonable

inferences most favorable to the trial court’s decision. In re K.D., 962 N.E.2d

1249, 1253 (Ind. 2012). Where the trial court issues findings of fact and

conclusions thereon, we apply a two-tiered standard of review. In re R.P., 949

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 6 of 13 N.E.2d 395, 400 (Ind. Ct. App. 2011). We consider first whether the evidence

supports the findings and then whether the findings support the judgment. Id.

We will set aside the trial court’s findings and conclusions only if they are

clearly erroneous and a review of the record leaves us firmly convinced that a

mistake has been made. Id. Appellate courts generally grant latitude and

deference to trial courts in family law matters. Matter of E.K., 83 N.E.3d 1256,

1260 (Ind. Ct. App. 2017), trans. denied (2018). This deference recognizes the

trial court’s “unique ability to see the witnesses, observe their demeanor, and

scrutinize their testimony, as opposed to this court’s only being able to review a

cold transcript of the record.” Id.

[11] In a CHINS proceeding, DCS bears the burden of proving by a preponderance

of the evidence that a child meets the statutory definition of a CHINS. In re

N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing

CHINS status, DCS must prove that the child is under age eighteen,

(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.

Ind. Code § 31-34-1-1.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 7 of 13 [12] Although the acts or omissions of one or both parents can cause a condition

that creates the need for court intervention, the CHINS designation focuses on

the condition of the children rather than on an act or omission of the parent(s).

N.E., 919 N.E.2d at 105. In other words, despite 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 need of

services.” Id. (citations omitted).

[13] Appellants do not dispute that the Children need care, treatment, or

rehabilitation. Rather, they maintain that the trial court erred in ultimately

determining that they are unable or have refused or neglected to supply the

Children with necessary supervision or treatment in the aftermath absent the

court’s coercive intervention. Because they do not specifically challenge any of

the court’s findings, we simply determine whether the unchallenged findings are

sufficient to support the judgment. T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d

104, 110 (Ind. Ct. App. 2012), trans. denied.

[14] In challenging the trial court’s determination that the Children were unlikely to

receive necessary treatment absent its coercive intervention, Appellants claim

that by the time DCS became involved, they had already taken every step

necessary to help the Children except for the actual counseling appointments.

They point to safety measures such as bedroom door alarms, as well as the

separation and supervision of the Children. However, FCM Feinberg testified

that she looked and did not notice any door alarms when she toured

Appellants’ home two months after M.S.’s disclosures. Tr. Vol. 2 at 89. As for

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 8 of 13 the Children’s separation, FCM Feinberg testified that at the time of her visit,

Appellants told her that the boys were both at Father’s for a couple days. Id. at

90. Mother also cites her ill health as a reason for waiting nearly two months to

arrange counseling for the Children. The record shows that she indeed suffered

health issues and a brief hospitalization between the time of M.S.’s disclosures

and DCS’s involvement. Nevertheless, other than Father’s mid-January call to

arrange intake appointments at Weber and Associates, it appears that neither

Father nor Stepfather took any initiative to ensure that the Children received

treatment/counseling while Mother was indisposed.

[15] The uncontested findings also reflect that Appellants repeatedly failed to

cooperate with DCS. From FCM Feinberg’s first visit to their home to the time

of the factfinding hearing, Appellants were not forthcoming with DCS.

Stepfather essentially told FCM Feinberg that they would neither talk to her nor

allow the Children to do so until they secured legal counsel. Appellants also

instructed Father not to talk to FCM Feinberg and told him that their attorney

was handling matters. FCM Feinberg accommodated Appellants’ various

specifications as to the location, time, and certain personnel to be involved in

the Children’s forensic interviews. Yet, appointments were repeatedly

rescheduled due to Appellants’ failure to present the Children for those

interviews. See Appealed Order at 5 (finding 42 describing DCS’s

“extraordinary efforts” to speak to Children, Mother, and Counsel, and finding

that “Mother, along with her attorney, thwarted those efforts by not appearing

at the scheduled interviews on several occasions.”). DCS eventually sought and

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 9 of 13 obtained an order to compel cooperation, and even then, Appellants’

compliance was only partial; they brought M.S., but not J.S., to be interviewed.

As of the date of the factfinding hearing, J.S. had yet to sit for a forensic

interview. This amounts to a demonstrated unwillingness by Appellants to

provide necessary treatment for the Children even with the court’s coercive

intervention.

[16] As for Mother’s assertion that she could not keep the Children apart and

present them both for their interviews, the record shows Father and Stepfather

both to be licensed drivers who could have pitched in to ensure that each boy

separately arrived at his interview as scheduled. Stepfather testified that he

ordinarily does not drive the Children but would be available to drive them in

emergency situations. Tr. Vol. 2 at 28-29. It is difficult to see how this would

not have qualified as one of those situations.

[17] With respect to J.S.’s treatment at Pierceton Woods, caseworker Bethany

Figolah testified that though J.S. has advanced rapidly through the levels of

treatment, he can advance no further without submitting to a polygraph, which

he is willing to do but for which Appellants have not granted permission. Id. at

40-41. In addressing the reasons for placing M.S. with Father after a brief stay

in foster care, the court relied on M.S.’s assertions that Stepfather had

physically abused J.S. on the night of the disclosures and had left red marks

after past spankings of M.S. Appellants claim that M.S.’s descriptions are

exaggerated and lack corroboration, but as the trial court accurately observed, it

was Appellants who facilitated the vacuum by repeatedly refusing to present

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 10 of 13 J.S. for a forensic interview. Appellants’ argument concerning exaggerated

descriptions is an invitation to reweigh evidence and reassess witness

credibility, which we cannot do.

[18] Simply put, the uncontested findings support the trial court’s ultimate

determination that it is in the Children’s best interests to be removed from the

home environment, that remaining in the home would be contrary to their

welfare due to Appellants’ inability to provide care and/or supervision without

coercive intervention, and that the Children each need “protection that cannot

be provided in the home.” Appealed Order at 6-7. As such, we affirm the

CHINS determination.

Section 2 – Appellants were not denied due process concerning J.S.’s placement. [19] Appellants allege that they were denied due process based on DCS’s alleged

failure to consider placing J.S. with relatives and its decision to place him at a

facility that is fifty miles from their home. Because every CHINS proceeding

has the potential to interfere with parents’ rights to raise their children, due

process protections are vital at every stage of the proceedings. In re L.C., 23

N.E.3d 37, 40 (Ind. Ct. App. 2015), trans. denied. For this reason, we balance

“(1) the private interests affected by the proceeding; (2) the risk of error created

by the State’s chosen procedure; and (3) the countervailing governmental

interest supporting use of the challenged procedure.” In re G.P., 4 N.E.3d 1158,

1165-66 (Ind. 2014) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

Ultimately, due process requires “the opportunity to be heard at a meaningful

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 11 of 13 time and in a meaningful manner.” K.D., 962 N.E.2d at 1257 (quoting

Mathews, 424 U.S. at 333).

[20] Indiana Code Section 31-34-4-2(a) requires that in CHINS proceedings, before

DCS places the child in an out-of-home placement, it must consider a relative

placement. Subsection (b) defines a relative placement as “a relative related by

blood, marriage, or adoption.” Here, the trial court removed the Children from

Appellants’ care immediately after M.S.’s forensic interview. M.S.’s disclosures

concerning sexual and physical abuse occurring in Appellants’ home

underscored the gravity of the circumstances. The court emphasized this in its

conclusions, stating “that reasonable efforts to prevent or eliminate removal of

the Children were not required due to the emergency nature of the situation[.]”

Appellants’ App. Vol. 2 at 23.

[21] Appellants’ argument appears twofold: that DCS should have placed J.S. in a

facility closer to their home, and that DCS failed to consider relative placement.

FCM Feinberg stated that her primary concern was getting J.S. the help he

needed. Tr. Vol. 2 at 100. With this goal in mind, J.S. was placed in a facility

with a program specifically geared for juvenile sex offenders, albeit fifty miles

from Appellants’ home. Though similar facilities may exist that are closer to

Appellants’ home, the statute makes no requirement as to inpatient treatment in

proximity to a particular parent. While we appreciate Appellants’ interest in

having J.S. placed in a convenient location, we believe that in these dire

circumstances, the State’s countervailing interest in protecting the Children

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 12 of 13 supports J.S.’s placement in the specialized treatment program offered at

Pierceton Woods.

[22] With respect to DCS’s alleged failure to consider a relative placement,

Appellants admit in their brief that FCM Feinberg “talked to [Father] about

whether he had relatives in the area [and that Father] disclosed that he had a

sister and brother in the area.” Appellants’ Br. at 21 (citing Tr. Vol. 2 at 100).

Their complaint in this regard appears to center on FCM Feinberg’s testimony

that she discussed the matter only with Father and did not speak to them about

possible placement with either of their relatives. The statute does not require

DCS to conduct an exhaustive search for suitable relatives; rather, it simply

requires that DCS consider relative placement, which it did. Appellants were not

denied due process due to J.S.’s placement. Accordingly, we affirm.

[23] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 13 of 13