MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 09 2016, 10:14 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke David E. Corey Deputy’s Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of K.C., C.M., November 9, 2016 Ki.C., & K.M., Court of Appeals Case No. 60A05-1603-JC-488 (Minor Chidren), Appeal from the Owen Circuit Court and, The Honorable Kelsey B. Hanlon, Judge A.C., (Mother) & R.L.M., Trial Court Cause No. (Father), 60C02-1511-JC-266 60C02-1511-JC-267 Appellants-Respondents, 60C02-1511-JC-268 60C02-1511-JC-269
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 1 of 18 v.
The Indiana Department of Child Services,
Appellee-Petitioner.
Barnes, Judge.
Case Summary [1] R.M. (“Father”) and A.C. (“Mother”) appeal the trial court’s adjudication that
their four children are children in need of services (“CHINS”). We affirm.
Issue [2] The combined and restated issue before us is whether there is sufficient
evidence in the record to support the CHINS adjudication.
Facts [3] Mother and Father are the parents of four children, who, in November 2015,
were between four months and six years old. In that month, the Owen County
office of the Department of Child Services (“DCS”) received a report that
Father was accused of killing an unidentified man. Additionally, DCS received
reports claiming that the children were neglected as a result of their parents’
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 2 of 18 drug use and domestic violence in the home.1 On November 24, 2015, DCS
caseworker Charlotte Church interviewed the parents at the maternal
grandmother’s home, where DCS had learned the parents were located with
their children at that time, although they were not living there.
[4] Church spoke with Mother, who told Church that she and Father had been in
an “altercation” that resulted in a mirror being broken in the home where they
lived with the children. Tr. p. 35. Mother did not provide Church with any
details as to this “altercation,” nor did Church notice that Mother had any
injuries. Father interrupted Church’s attempts to speak with Mother alone.
Father also appeared to Church to be “frustrated,” and his demeanor fluctuated
between calm and agitated. Id. Mother later insisted that no domestic violence
occurred in the home, and no domestic battery charges have been filed against
Father.
[5] Both parents refused Church’s offer at that time to take a drug screen but
admitted to taking Suboxone, which is used medically to treat opioid addiction.
Church noted that Mother had a prescription bottle for Suboxone from July
2015 and that Father had a current prescription for Suboxone. The parents did
not permit Church to observe the family home at that time. However, Church
1 DCS also apparently received information that one of the children had been the victim of sexual abuse. This claim was not included in the CHINS petitions, nor was any evidence ever presented to support this allegation.
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 3 of 18 did so on another occasion, and she had no concerns regarding cleanliness,
food, bedding, or anything else regarding the physical condition of the home.
[6] On November 25, 2015, DCS removed the four children from Mother and
Father’s care and filed identical CHINS petitions as to each of the children.
The children were placed in the care of the maternal grandmother. During the
approximately two months between the filing of the petitions and the holding of
fact-finding hearings, Mother and Father voluntarily and routinely submitted to
drug screens and never tested positive for any improper substances. Both
parents did often test positive for Suboxone, although not always. Also, after
the CHINS petition was filed and before the first fact-finding hearing, DCS
referred both parents to either Hamilton Center or Cummins for a mental
health evaluation and treatment. Father first sought treatment services from
Hamilton Center but they refused to provide services to him for reasons that are
not specified in the record. Father then went to Cummins, which told Father
that they could not meet his psychological needs. Father then sought and
received treatment from a facility called Centerstone, which provides substance
abuse and individual counseling. Father may have sustained a head injury at
some point in the past, and DCS believes he may need a neuro-psychological
examination. There is no evidence as to any particular mental illness from
which Father suffers.
[7] The trial court conducted fact-finding hearings on January 15 and 26, 2016.
Church testified that many people are frightened of Father’s temper. Maternal
grandmother did not like supervising visits because of her fear of Father, which
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 4 of 18 resulted in some visitations being missed and eventually changed to visitation at
the DCS office rather than maternal grandmother’s home. Otherwise,
however, Mother and Father consistently visited with the children.
[8] Evidence also was presented that, after the children’s removal, they were all
taken for a medical checkup. The two youngest children were not current on
their recommended vaccinations, but the older two were. A physician’s
assistant at the medical office expressed concern that none of the children were
regularly brought in for well-child examinations. However, all four children
were noted to be developmentally normal, and no physical ailments were
observed. One of the children needed dental care, which was arranged for by
maternal grandmother.2 The parents acknowledged at the time of the children’s
removal that this child likely needed dental care, due to what they described as
“bottle rot.” Tr. p. 37.
[9] Father’s criminal history was discussed at the hearing. Father has prior
convictions from between 2002 and 2009 for public intoxication, criminal
recklessness, resisting law enforcement, criminal mischief, possession of
methamphetamine, battery, and domestic battery. The domestic battery charge
was for Father’s battery of his mother with a baseball bat. In November 2015,
Father was charged with battery with a deadly weapon and operating a vehicle
2 During the fact-finding hearing, DCS attempted to introduce copies of the children’s medical records into evidence. Mother’s and Father’s attorneys objected. The trial court stated it was taking the matter under advisement, but it never subsequently stated its ruling on the matter. The records have not been included as an exhibit in the record submitted to this court. In fact, no documentary exhibits are included in the record.
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 5 of 18 after being adjudged an habitual traffic violator. In December 2015, Father was
charged with theft and criminal trespass in one case, and another habitual
traffic violator charge in another case. However, law enforcement has not been
able to corroborate that Father killed anyone, and he has not been charged with
murder, although as of the time of the fact-finding hearing the matter was still
under investigation.
[10] Each parent had one prior substantiated case of neglect with DCS. In 2011,
Mother was found to have neglected one of the children because of physical
violence occurring in front of the child, related to a fight Mother had with her
sister. This substantiation resulted in an informal adjustment. In 2005, a case
of neglect was substantiated against Father with respect to a child not involved
in these proceedings and a woman other than Mother, for that child’s failure to
thrive. In addition to these substantiations, DCS investigated the family on at
least four other occasions between 2012 and 2015 but failed to substantiate
claims of neglect, most recently in July 2015. Church testified that these
failures to substantiate were not so much because the claims were not proven,
but because Mother and Father did not cooperate with DCS investigations.
[11] At the fact-finding hearing, DCS presented the testimony of Scott Mayhew.
Mayhew testified that he had purchased at least two guns from Father, the last
time being approximately a year earlier. Mayhew also described an altercation
sometime in October 2015 involving himself, Father, Mother, and multiple
other individuals, in which Father approached Mayhew with a club before
being disarmed by Mayhew’s son and Mother slapped Mayhew twice. The
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 6 of 18 children were not present during this altercation; it appears this altercation
formed the basis of Father’s pending battery charge. Mayhew also said that he
had witnessed Father yelling at and being verbally abusive to the children and
Mother, although he never witnessed any physical abuse.
[12] After Mayhew testified about the altercation, counsel for DCS asked him
whether he had ever observed Father engaged in any illegal conduct, and
Mayhew responded that he had witnessed Father sell drugs to a man named
Larry Farley. Counsel for Father immediately objected, joined by Mother’s
attorney, on the basis that they had no notice of any allegation that Father had
sold drugs, despite a discovery request asking DCS to reveal any allegations of
illegal conduct by Father and Mother. After discussion of the matter with
counsel in chambers, the trial court allowed DCS to again ask Mayhew about
purported drug dealing by Father. Father objected again, this time on the basis
that there was a lack of foundation for the claim that he had dealt drugs.
Mayhew testified that Farley had told him Father had sold heroin to him.
Father objected to this testimony as hearsay, and the trial court sustained the
objection. DCS then clarified with Mayhew that he observed two instances in
which Father purportedly sold heroin and that at least some of the children
were present on the first occasion but not the second.
[13] On February 1, 2016, the trial court entered orders finding that all four children
were CHINS, accompanied by the following findings:
1. Domestic violence has occurred in the home. During the initial assessment Mother indicated concerns about the home
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 7 of 18 conditions to FCM Supervisor Charlotte Church. Respondent Mother indicated that she did not want DCS to view the family home because it was in disarray after an altercation with [Father], during which he threw and broke items in the home. Respondent Mother provided a different version of events at fact- finding. The Court does not find Mother’s in-court testimony relating to this event to be credible and believes that Respondent Mother was being truthful at the time of the assessment.
2. During the assessment phase, FCMS Church attempted to interview Respondent Mother about the allegations privately. Respondent Father interrupted the same and the interview was stopped.
3. Respondent Father has engaged in high risk criminal conduct in the family home. DCS witness Scott Mayhew observed Respondent Father sell narcotics from the home while the Respondents’ older Children were present sometime in October, 2015. Scott Mayhew also purchased a firearm from Respondent Father, who is a convicted felon, in the family home. Again, the witness indicated that the Children were present in the home during the transaction. Respondent Mother was also present at the home during both incidents.
4. Respondent Parents both report a history of substance abuse. Both Parents appear to have taken substantial steps in addressing the same. Respondent Father has passed all screens administered by DCS after refusing the first screen offered. Respondent Mother failed her first screen for suboxone after refusing to take the first screen offered. Mother was candid about what the screen results would be and had used suboxone left from a previous, recent prescription.
5. Respondent Father has a history of violent conduct, domestic violence and criminal convictions relating to the same.
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 8 of 18 Respondent Father is unlikely to seek or receive professional treatment for the same without the coercive intervention of the Court.
6. Respondent Mother has been unable to ensure the safety of the Child[ren] in the home. Mother’s contradictory statements regarding the cause of the disarray in the family home at the time of initial assessment suggests an inability or unwillingness to address the safety concern that domestic violence poses in the home.
App. pp. 37-38. The trial court also specifically found that the children were
CHINS under Indiana Code Section 31-34-1-1 and that leaving the children in
Mother and Father’s care would be contrary to their welfare because “of an
inability, refusal or neglect to provide shelter, care, and/or supervision at the
present time . . . .” Id. at 38. The trial court entered dispositional orders on
February 23, 2016. Mother and Father now appeal.
Analysis [14] Mother and Father’s overall assertion is that there is insufficient evidence to
sustain the finding that their children are CHINS. When reviewing the
sufficiency of the evidence for a trial court’s CHINS determination, “‘[w]e
neither reweigh the evidence nor judge the credibility of the witnesses.’” In re
S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). (quoting In re K.D., 962 N.E.2d 1249,
1253 (Ind. 2012)). We must instead consider only that evidence supporting the
trial court’s decision and any reasonable inferences drawn therefrom. Id. at
1287.
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 9 of 18 [15] The trial court here entered limited sua sponte findings and conclusions
supporting its CHINS finding, although such findings and conclusions are not
statutorily required. See id. “As to the issues covered by the findings, we apply
the two-tiered standard of whether the evidence supports the findings, and
whether the findings support the judgment.” Id. We review any remaining
issues not covered by the findings under the general judgment standard,
meaning we will affirm a judgment if it can be sustained on any legal theory
supported by the evidence. Id. Also, as a general rule appellate courts grant
latitude and deference to trial courts in family law matters. Steele-Giri v. Steele,
51 N.E.3d 119, 124 (Ind. 2016). This deference recognizes a 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.
[16] Under Indiana Code Section 31-34-1-1,3 a child under eighteen years old is a
CHINS if:
(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
3 Indiana Code Section 31-34-1-2 alternatively provides that a child is a CHINS if his or her physical or mental health is seriously endangered due to injury caused by the act or omission of the child’s parent or guardian. DCS made no allegation and the trial court made no finding that the children were CHINS under this statutory provision.
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 10 of 18 (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.
DCS bears the burden of proving by a preponderance of the evidence that a
child is a CHINS. In re S.A., 15 N.E.3d 602, 607 (Ind. Ct. App. 2014), trans.
denied.
[17] A CHINS proceeding focuses on the best interests of the children, not the “guilt
or innocence” of either parent. In re N.E., 919 N.E.2d 102, 106 (Ind. 2010).
The purposes of a CHINS case are to help families in crisis and to protect
children, not punish parents. S.D., 2 N.E.3d at 1285. Governmental intrusion
into a family’s life is reserved only for families who cannot meet a child’s needs
without coercion—“not merely those who have difficulty doing so.” Id. It is
not enough for DCS to prove that one or the other of a child’s parents suffers
from shortcomings; rather, there must be evidence that the parents are unlikely
to meet a child’s needs absent coercive court intervention. S.A., 15 N.E.3d at
611-12. And, evidence that a child is endangered is not by itself enough to
warrant a CHINS finding and the State’s parens patriae intrusion into family
life. S.D., 2 N.E.3d at 1287. On the other hand, a court need not wait until a
tragedy occurs before entering a CHINS finding. In re R.S., 987 N.E.2d 155,
158 (Ind. Ct. App. 2013).
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 11 of 18 [18] We first address the trial court’s finding that Father “has engaged in high risk
criminal conduct in the family home.” App. p. 37. The trial court went on to
find that Father dealt “narcotics” in the home while the children were present.
Id. We agree with Mother and Father that there is no admissible evidence to
support such a finding. It was based solely upon Mayhew’s testimony, who
admitted he had no idea what heroin looked like and was told by a third
person—who did not testify at the fact-finding hearing—that it was heroin. The
trial court sustained Father’s hearsay objection to this testimony.
[19] DCS does not attempt to argue that Mayhew’s testimony on this point was
admissible; it claims solely that Mother and Father waived any claim of error
by failing to timely object. This argument is borderline disingenuous. When
Mayhew first mentioned Father’s purported sale of heroin, the attorneys for
both Mother and Father objected on the basis that they had no notice DCS
would attempt to claim that Father had dealt drugs. It is well-settled that DCS
must give parents notice of the allegations it intends to pursue in a CHINS case
so that the parents may prepare for and attempt to refute them. See In re Ju.L.,
952 N.E.2d 771, 778 (Ind. Ct. App. 2011). After an in-chambers discussion, the
trial court permitted DCS to continue questioning Mayhew about the purported
drug dealing by Father. Father again objected on the basis that DCS had not
established a foundation for such evidence. See Moon v. State, 560 N.E.2d 76, 76
(Ind. Ct. App. 1990) (noting that lay witnesses may testify to identity of
controlled substance based upon the witness’s personal experience). After
allowing DCS to ask Mayhew how he knew that Father was selling heroin, he
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 12 of 18 responded that Farley had told him it was heroin. Father objected to this
testimony, too, and the trial court sustained it. It was clearly proper to sustain
that objection, given that Mayhew was attempting to relate Farley’s
statement—that he bought heroin from Father—for the truth of the matter
asserted. See Ind. Evidence Rule 801(c). Mother and Father adequately
preserved their claim of error with respect to admission of evidence that Father
dealt heroin. Similarly, Mayhew’s objected-to testimony that someone had said
he or she was going to purchase morphine from Father also was hearsay.
Without that evidence, all that Mayhew legitimately testified to is that he saw
Father pass something hand-to-hand to another person. There is insufficient
evidence to support the finding that Father dealt narcotics.
[20] There is, by contrast, evidence that Mayhew bought two guns from Father.
Although Father has not been charged with a crime in connection with these
acts, he is a convicted felon, and federal law generally prohibits possession of
firearms by felons. See 18 U.S.C. § 922(g). The children apparently were
present in the home during at least one of these acts.
[21] Indeed, there is a significant pattern of Father having frequently engaged in
criminal activity over the years. He was facing a plethora of various charges at
the time of the CHINS filing and fact-finding hearing. Some of Father’s
criminal activities have been violent in nature, such as his battery of his mother
with a baseball bat and, more recently, the battery described by Mayhew for
which Father was currently facing charges. This corresponds more generally
with evidence that Father is, at the least, unpleasant and verbally abusive
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 13 of 18 toward many people, most importantly Mother and the children. Father’s
abusiveness was causing problems with visitation prior to the CHINS fact-
finding hearing.
[22] Mother has some of her own issues with violence and aggressiveness. The 2011
CHINS adjudication was related to a battery committed in front of one of the
children. Mayhew accused her of being involved in the October 2015
altercation and slapping him twice. A medical provider also testified to Mother
calling her office after the CHINS case was filed and being verbally abusive to
staff.
[23] This brings us to the trial court’s finding that domestic violence occurred in the
family home. Mother and Father dispute the support for this finding. It is true
that Church did not know any details about the “altercation” Mother
mentioned to her, aside from the fact that a mirror was broken during it. Tr. p.
35. However, in another display of Father’s controlling behavior, he prevented
Mother from discussing the incident in detail with Church. It was reasonable
for the trial court to infer that a violent incident of some kind occurred in the
family home. Also, the trial court was not required to accept Mother’s
alternative explanation at the fact-finding hearing for how the mirror was
broken. We have held that, “a child’s exposure to domestic violence can
support a CHINS finding.” K.B. v. Indiana Dep’t of Child Servs., 24 N.E.3d 997,
1003 (Ind. Ct. App. 2015). Furthermore, there have been multiple studies
indicating the harm that witnessing conflict between parents can have on very
young children, such as the children here, who are unable to effectively
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 14 of 18 communicate the effect that such conflict has on them. See In re E.M., 4 N.E.3d
636, 644 (Ind. 2014).
[24] The trial court also found that Father “is unlikely to seek or receive professional
treatment” to address his history of violent conduct. App. p. 38. We
acknowledge the undisputed evidence in the record that Father did make some
efforts to seek counseling at three different facilities after the CHINS filing and
before the fact-finding hearings. However, we still cannot say the trial court’s
finding on this point is clearly erroneous. Father’s criminal history extends
back over a decade, but, as of the fall of 2015, he still was engaging in
sometimes violent conduct. Thus, despite previous opportunities to address his
violent and aggressive temper, he evidently failed to benefit from those
opportunities. Additionally, the evidence indicates Father has very deep-seated
emotional or mental health issues that will not respond to ordinary treatment,
as two different facilities indicated that they would be unable to assist him.
This suggests that Father may require unusual and extensive assistance in
addressing his issues, including a neuro-psychological examination, and that
coercive intervention will be necessary to ensure that he follows through on that
assistance.
[25] In sum, there is sufficient evidence in the record to infer, in particular, that
Father’s violent temper and aggressiveness and current criminal charges,
coupled with his multiple prior convictions, pose a threat to the children’s well-
being that will not be addressed without coercive court intervention. Mother
and Father suggest that there is evidence the children are well cared-for, as
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 15 of 18 indicated by DCS’s lack of concern over the physical condition of the family
household and lack of evidence that they suffered from direct physical abuse or
were malnourished or anything of that nature. However, this is a request to
reweigh the evidence that we must reject. See In re Des.B., 2 N.E.3d 828, 838
(Ind. Ct. App. 2014) (affirming CHINS adjudication based on father’s violent
conduct despite argument that DCS failed to identify a specific danger caused
by parents to children’s physical or mental condition and despite evidence that
family home was adequate and there was no evidence children were
malnourished or unhealthy or directly abused). We also reiterate that the trial
court was not required to wait until some actual harm or tragedy occurred
before finding that the children were CHINS. See R.S., 987 N.E.2d at 158.
[26] Additionally, there was evidence in the record to indicate that Mother and
Father were slipping in their ability to care for the children. The younger two
children were not current on their vaccinations, and none of the children were
being taken to the pediatrician for regular well-checks. There was no evidence
as to Mother and Father having a legitimate reason for endangering their two
youngest children by not vaccinating them. One of the children needed
immediate dental care; Mother and Father were aware of this fact but had failed
to seek treatment.
[27] We acknowledge that Mother and Father have taken some steps to address the
multiple issues they face. Although both parents have a history of substance
abuse, it appears they both were making progress in treating that problem, as
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 16 of 18 indicated by their prescriptions for Suboxone4 and their repeated negative drug
screens during the pendency of the CHINS case. 5 Indeed, the trial court’s
finding regarding Mother and Father’s drug use would not seem to support a
CHINS finding because they are addressing that issue without coercive court
intervention. Still, the parties’ drug use was but one part of a multitude of
problems they were facing, and it is reasonable to infer they may need coercive
government assistance in remedying all of them. Additionally, much of the
evidence in this case is directed towards Father’s behavior; there is some with
regard to Mother but not as much. However, a CHINS finding is based upon
the condition of the child and may be based solely upon the acts or omissions of
one parent. N.E., 919 N.E.2d at 105. Particularly in light of the deference we
grant to trial courts in cases such as this, we cannot say the trial court clearly
erred in finding the children here to be CHINS.
4 DCS seems to suggest Mother was illegally taking Suboxone without a prescription from her July 2015 bottle. However, a prescription is valid for one year in Indiana. See Ind. Code § 25-26-13-25(h). Also, if in fact Mother was still taking pills from July 2015 in November 2015, that would seem to indicate she was taking less of the drug than prescribed, which would not seem to be problematic so long as she was not abusing other drugs, and there is no evidence that she was. 5 DCS attempts to direct this court to websites regarding the ability to falsity drug test results. There was no evidence whatsoever presented at the fact-finding hearing on this matter, and we will not accept DCS’s apparent invitation to judicially notice these websites and to improperly supplement the record in this fashion. See Troyer v. Troyer, 987 N.E.2d 1130, 1138 n.3 (Ind. Ct. App. 2013) (reciting established principle that judicial notice may not be used on appeal to fill evidentiary gaps in trial court record caused by party’s failure to present evidence at trial).
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 17 of 18 Conclusion [28] There is sufficient evidence in the record to support the conclusion that Mother
and Father’s children are CHINS. We affirm.
[29] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 60A05-1603-JC-488 | November 9, 2016 Page 18 of 18