MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or Aug 26 2015, 9:45 am cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Agency Indianapolis, Indiana Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: August 26, 2015 J.S. (minor child), a Child In Court of Appeals Case No. Need of Services, and 49A02-1501-JC-43 T.S. (mother), Appeal from the Marion Superior Appellant-Respondent, Court, Juvenile Division; The Honorable Marilyn Moores, v. Judge; The Honorable Danielle Gaughan, Magistrate; The Indiana Department of 49D09-1407-JC-1544 Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 1 of 7 May, Judge.
[1] T.S. (Mother) appeals the adjudication of her child, J.S. (Child), as a Child in
Need of Services (CHINS). She argues the trial court abused its discretion
when it admitted records regarding her visitation with Child and the
Department of Child Services (DCS) did not present sufficient evidence Child
was a CHINS. We affirm.
Facts and Procedural History [2] Mother gave birth to Child on April 16, 2012. 1 On July 16, 2014, DCS
removed Child from Mother’s care because Mother was soon to be homeless
and could not care for Child. Mother told the DCS family case manager,
Michelle Giaconda, she could “no longer take care of [Child], that she would
like DCS to take [Child].” (Tr. at 9.) In addition, Giaconda observed Mother
did not have proper furniture or supplies for Child, tested positive for
marijuana, and denied prior DCS involvement despite a pending case in Allen
County involving Mother’s older child.
[3] On December 3, 2014, the court held a fact-finding hearing on the matter.
During the hearing, DCS offered into evidence the attendance log from the
Children’s Bureau, the organization that provided a location for Mother to visit
with Child. Mother objected on the ground the attendance log was not a
1 Child’s father was not a party to the CHINS proceeding and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 2 of 7 business record, but the trial court admitted it. The trial court found Child was
a CHINS and, after a dispositional hearing, ordered Mother to participate in
services with the goal of reunification with Child.
Discussion and Decision Sufficiency of the Evidence
[4] Mother asserts DCS did not present sufficient evidence Child was a CHINS. A
CHINS proceeding is civil in nature, so DCS must prove by a preponderance of
the evidence that a child is a CHINS as defined by the juvenile code. In re N.E.,
919 N.E.2d 102, 105 (Ind. 2010). The CHINS petition was filed pursuant to
Ind. Code § 31-34-1-1, which states:
Sec. 1. 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.
A CHINS adjudication “focuses on the condition of the child,” and not the
culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 3 of 7 a child to be a CHINS is to provide proper services for the benefit of the child,
not to punish the parent. Id. at 106.
[5] When a juvenile court enters findings of fact and conclusions of law in a
CHINS decision, we apply a two-tiered standard of review. Parmeter v. Cass
County DCS, 878 N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first
consider whether the evidence supports the findings and then whether the
findings support the judgment. Id. We may not set aside the findings or
judgment unless they are clearly erroneous. Id. Findings are clearly erroneous
when the record contains no facts to support them either directly or by
inference, and a judgment is clearly erroneous if it relies on an incorrect legal
standard. Id. We give due regard to the juvenile court’s ability to assess
witness credibility and do not reweigh the evidence; we instead consider the
evidence most favorable to the judgment with all reasonable inferences drawn
in favor of the judgment. Id. We defer substantially to findings of fact, but not
to conclusions of law. Id.
[6] Mother argues the conditions that existed when Child was first removed from
her home no longer exist, and thus the trial court erred when it adjudicated
Child a CHINS. However, DCS presented evidence Mother had not submitted
to a drug screen at any time during the pending CHINS case, had not
participated in the services offered, and would not provide DCS with
information regarding her living arrangements. Mother’s argument is an
invitation for us to reweigh the evidence, which we cannot do. See id. (appellate
court cannot reweigh evidence).
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 4 of 7 Admission of Attendance Log
[7] Mother also argues the admission of attendance records from the Children’s
Bureau, where she participated in visits with Child, were inadmissible hearsay
based on our Indiana Supreme Court’s decision in In re The Matter of the
Termination of the Parent-Child Relationship of E.T. and B.T., 808 N.E.2d 639, 643-
44 (Ind. 2004). In that case, our Indiana Supreme Court held the trial court
abused its discretion when it admitted reports compiled by the facility that
supervised visits between E.T. and B.T. because the reports contained third-
party observations, conclusory lay opinions, and the records were compiled “for
the sole benefit of [the Office of Family and Children].” Id. at 645.
[8] During the fact finding hearing, DCS offered into evidence the attendance log
from the Children’s Bureau, where Mother visited Child. The attendance log
was accompanied by an affidavit from the Records Custodian of the Children’s
Bureau certifying the record was kept in the “regular course of [their] activity”
and was made “as a regular business record in order to document participation
in supervised parenting time.” (Petitioner’s Ex. 10.) Unlike In re E.T., the
attendance logs did not include third-party observations; however, like In re
E.T., they were prepared for use by various organizations such as DCS.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or Aug 26 2015, 9:45 am cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Agency Indianapolis, Indiana Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: August 26, 2015 J.S. (minor child), a Child In Court of Appeals Case No. Need of Services, and 49A02-1501-JC-43 T.S. (mother), Appeal from the Marion Superior Appellant-Respondent, Court, Juvenile Division; The Honorable Marilyn Moores, v. Judge; The Honorable Danielle Gaughan, Magistrate; The Indiana Department of 49D09-1407-JC-1544 Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 1 of 7 May, Judge.
[1] T.S. (Mother) appeals the adjudication of her child, J.S. (Child), as a Child in
Need of Services (CHINS). She argues the trial court abused its discretion
when it admitted records regarding her visitation with Child and the
Department of Child Services (DCS) did not present sufficient evidence Child
was a CHINS. We affirm.
Facts and Procedural History [2] Mother gave birth to Child on April 16, 2012. 1 On July 16, 2014, DCS
removed Child from Mother’s care because Mother was soon to be homeless
and could not care for Child. Mother told the DCS family case manager,
Michelle Giaconda, she could “no longer take care of [Child], that she would
like DCS to take [Child].” (Tr. at 9.) In addition, Giaconda observed Mother
did not have proper furniture or supplies for Child, tested positive for
marijuana, and denied prior DCS involvement despite a pending case in Allen
County involving Mother’s older child.
[3] On December 3, 2014, the court held a fact-finding hearing on the matter.
During the hearing, DCS offered into evidence the attendance log from the
Children’s Bureau, the organization that provided a location for Mother to visit
with Child. Mother objected on the ground the attendance log was not a
1 Child’s father was not a party to the CHINS proceeding and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 2 of 7 business record, but the trial court admitted it. The trial court found Child was
a CHINS and, after a dispositional hearing, ordered Mother to participate in
services with the goal of reunification with Child.
Discussion and Decision Sufficiency of the Evidence
[4] Mother asserts DCS did not present sufficient evidence Child was a CHINS. A
CHINS proceeding is civil in nature, so DCS must prove by a preponderance of
the evidence that a child is a CHINS as defined by the juvenile code. In re N.E.,
919 N.E.2d 102, 105 (Ind. 2010). The CHINS petition was filed pursuant to
Ind. Code § 31-34-1-1, which states:
Sec. 1. 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.
A CHINS adjudication “focuses on the condition of the child,” and not the
culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 3 of 7 a child to be a CHINS is to provide proper services for the benefit of the child,
not to punish the parent. Id. at 106.
[5] When a juvenile court enters findings of fact and conclusions of law in a
CHINS decision, we apply a two-tiered standard of review. Parmeter v. Cass
County DCS, 878 N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first
consider whether the evidence supports the findings and then whether the
findings support the judgment. Id. We may not set aside the findings or
judgment unless they are clearly erroneous. Id. Findings are clearly erroneous
when the record contains no facts to support them either directly or by
inference, and a judgment is clearly erroneous if it relies on an incorrect legal
standard. Id. We give due regard to the juvenile court’s ability to assess
witness credibility and do not reweigh the evidence; we instead consider the
evidence most favorable to the judgment with all reasonable inferences drawn
in favor of the judgment. Id. We defer substantially to findings of fact, but not
to conclusions of law. Id.
[6] Mother argues the conditions that existed when Child was first removed from
her home no longer exist, and thus the trial court erred when it adjudicated
Child a CHINS. However, DCS presented evidence Mother had not submitted
to a drug screen at any time during the pending CHINS case, had not
participated in the services offered, and would not provide DCS with
information regarding her living arrangements. Mother’s argument is an
invitation for us to reweigh the evidence, which we cannot do. See id. (appellate
court cannot reweigh evidence).
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 4 of 7 Admission of Attendance Log
[7] Mother also argues the admission of attendance records from the Children’s
Bureau, where she participated in visits with Child, were inadmissible hearsay
based on our Indiana Supreme Court’s decision in In re The Matter of the
Termination of the Parent-Child Relationship of E.T. and B.T., 808 N.E.2d 639, 643-
44 (Ind. 2004). In that case, our Indiana Supreme Court held the trial court
abused its discretion when it admitted reports compiled by the facility that
supervised visits between E.T. and B.T. because the reports contained third-
party observations, conclusory lay opinions, and the records were compiled “for
the sole benefit of [the Office of Family and Children].” Id. at 645.
[8] During the fact finding hearing, DCS offered into evidence the attendance log
from the Children’s Bureau, where Mother visited Child. The attendance log
was accompanied by an affidavit from the Records Custodian of the Children’s
Bureau certifying the record was kept in the “regular course of [their] activity”
and was made “as a regular business record in order to document participation
in supervised parenting time.” (Petitioner’s Ex. 10.) Unlike In re E.T., the
attendance logs did not include third-party observations; however, like In re
E.T., they were prepared for use by various organizations such as DCS.
[9] The trial court admitted the attendance logs over Mother’s objection. During
the hearing, the attendance logs were referenced twice. First, during the
testimony of DCS Case Manager Nichole Lee, who testified Mother did not
“consistently participate in her visitation.” (Tr. at 20-1.) The attendance logs
were also mentioned during Mother’s testimony: Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 5 of 7 [Defense]: During the State’s case, they presented an affidavit from Jonesboro [the Records Custodian], regarding visitation that you had with your child, there’s indications in Exhibit 10, Petitioner’s Exhibit 10, that you did miss some visits. Can you tell the Judge why those visits were missed?
[Mother]: Due to they don’t have, there [sic] calendar was full so they didn’t have openings to fit me, fit my schedule, and so you know . . .
[Defense]: You say schedule, are you talking about your work schedule?
[Mother]: My work schedule yes. So it was basically like I had to call off work or something to fit it. And Nichole was aware of that from the first meeting, that the lady was going to try to find spots, but we had to take whatever they had open at that time.
(Id. at 37.)
[10] If the trial court abused its discretion when it admitted the attendance logs, an
error in the admission of evidence is harmless if it does not “affect the
substantial rights of the parties.” Indiana Trial Rule 61. “The improper
admission of evidence is harmless error when the judgment is supported by
substantial independent evidence to satisfy the reviewing court that there is no
substantial likelihood that the questioned evidence contributed to the
judgment.” In re E.T., 808 N.E.2d at 645-6. DCS presented sufficient evidence
Child was a CHINS because Mother did not have stable housing, refused drug
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 6 of 7 screens, and did not participate in services offered by DCS. Thus any possible
error in the admission of the attendance logs was harmless.
Conclusion
[11] DCS presented sufficient evidence Child was a CHINS and the admission of
the attendance records from the Children’s Bureau was harmless error.
Accordingly, we affirm.
[12] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JC-43 | August 26, 2015 Page 7 of 7