MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 12 2016, 8:49 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Steven J. Halbert Gregory F. Zoeller Carmel, Indiana Attorney General of Indiana
Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of K.W., A.W., August 12, 2016 and D.W. (Minor Children), Court of Appeals Case No. Children in Need of Services, 49A04-1601-JC-9 Appeal from the Marion Superior and Court The Honorable Marilyn A. D.W. (Father), Moores, Judge Appellant-Respondent, The Honorable Danielle Gaughan, v. Magistrate Trial Court Cause Nos. The Indiana Department of 49D09-1504-JC-1476, -1477, -1478 Child Services, Appellee-Petitioner
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 1 of 15 Crone, Judge.
Case Summary
[1] D.W. (“Father”) appeals trial court dispositional orders continuing the
adjudication of his three minor children, K.W., A.W., and D.W. (collectively
“the Children”) as children in need of services (“CHINS”). He claims that the
trial court violated his due process rights by adjudicating the Children as
CHINS in proceedings involving the Children’s mother (“Mother”) without
giving him an opportunity to be heard. He also maintains that the findings and
evidence are insufficient to support the trial court’s conclusion concerning the
Children’s placement with a relative other than Father. Concluding that his
due process rights were not violated and that the findings and evidence support
the placement, we affirm.
Facts and Procedural History [2] K.W., A.W., and D.W. (born in 2001, 2003, and 2005 respectively) were born
of the marriage between Father and Mother. In 2007, Mother took the
Children from school and relocated with them from South Carolina to
Indianapolis. Father remained in South Carolina.
[3] On April 14, 2015, the Department of Child Services (“DCS”) received a report
alleging that Mother and the Children were living in a home without utilities,
that they had to be out of the home within days and had no plan for housing,
that the Children did not have food, and that the Children had excessive Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 2 of 15 absences from school. DCS removed the Children from Mother and placed
them in relative care with Mother’s aunt (“Aunt”), who had been caring for
them for the preceding five years. The family case manager assigned to the case
reported speaking to Father by telephone on April 30, 2015, and that he was
living in South Carolina and was unaware of the circumstances that had led to
the Children’s removal.
[4] On May 1, 2015, DCS filed a petition to have the Children designated as
CHINS. The CHINS petition alleged that Mother had failed to provide the
Children with a safe, stable home environment; that Mother was homeless and
unable to provide for the Children’s needs; that Mother and the Children had
been living in a home with no utilities and very little food; that K.W. had
excessive unexcused absences from school; that Mother had failed to meet the
Children’s medical needs (no medical insurance or updated immunizations);
that K.W. had been hospitalized for a suicide attempt and Mother had not
continued her mental health treatment; that K.W. had suicidal ideations and
had been cutting herself; that Father had not successfully demonstrated the
ability or willingness to parent the children and was unable to ensure their
safety and well-being while in Mother’s care; and that the coercive intervention
of the court was necessary to ensure the Children’s safety and well-being.
[5] Mother submitted a written admission of the CHINS allegations, and the trial
court adjudicated the Children as CHINS. A dispositional hearing was set for
June 26, 2015. On June 18, 2015, the trial court sent Father a summons with
CHINS petition and advisement of rights. Father did not appear at the hearing,
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 3 of 15 and the trial court issued a parental participation order concerning Mother. On
July 6, 2015, Father signed and dated the advisement of rights. 1
[6] On August 21, 2015, Father appeared and requested assistance of counsel and a
factfinding hearing. The trial court vacated a scheduled default hearing and set
Father’s factfinding hearing for October 26, 2015. On that date, Father did not
appear in person but appeared by counsel. At the outset of the hearing, counsel
stated, “Judge, I’ve spoken with my client extensively, he’d like to enter a
waiver to the CHINS case today.” Tr. at 4. The trial court accepted the
waiver, found that the Children would continue as CHINS, and set a
dispositional hearing for December 11, 2015.
[7] At the dispositional hearing, Father appeared by telephone and requested
unsupervised visitation with the Children in South Carolina. The trial court
denied his request but urged him to engage in telephone conversations with the
Children as well as supervised visitation in Indiana. Based on the DCS family
case manager’s report that the Children said that Father smokes marijuana and
fights with his girlfriend, the trial court found a rational basis to order Father’s
participation in random drug and alcohol screenings and a domestic violence
assessment. The trial court issued a dispositional order with findings of fact and
1 The parties dispute the date upon which Father was first notified of the CHINS proceedings, and the record is unclear on this point. However, as discussed herein, Father’s subsequent waiver of factfinding amounted to acquiescence in the CHINS determination. Even so, we remind DCS that the better practice is to serve the out-of-state parent at the earliest opportunity in order to ensure that the parent is afforded ample time to respond and participate accordingly.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 4 of 15 conclusions thereon, continuing the Children’s CHINS status and placement
with Aunt and incorporating the predispositional and parent participation
orders as well as DCS reports and petitions.
[8] Father now appeals. Additional facts will be provided as necessary.
Discussion and Decision Section 1 – Father was not denied his right to be heard at a meaningful time and in a meaningful manner. [9] Father asserts that he was denied due process because the trial court had earlier
determined that the Children were CHINS in proceedings involving Mother
and denied him the right to be heard. He submits that the error is “so
fundamental that no action short of setting aside the prior CHINS finding and
disposition could correct it and no objection is required.” Appellant’s App. at
14. 2 In analyzing this claim, it is important to address the nature and focus of a
CHINS determination.
[10] In a CHINS proceeding, the State bears the burden of proving by a
preponderance of the evidence that a child meets the statutory definition of a
2 We note that Father’s brief is pejorative in tone and impugns the motives of DCS and the trial court. See, e.g., Tr. at 17-18, 20 (accusing DCS of making “misrepresentations” to the trial court and of “presuming that fathers are incapable of taking care of their children” and accusing the trial court of imposing “humiliating and onerous conditions” on him in the “hope that he would not be able to complete the services and the DCS could then use this ‘failure’ as an additional reason to push for termination.”). We remind counsel that “[i]nvectives are not argument, and have no place in legal discussion ....” Brill v. Regent Commc’ns, Inc., 12 N.E.3d 299, 301 n.3 (Ind. Ct. App. 2014) (quoting Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Muncie & Portland Traction Co., 166 Ind. 466, 468, 77 N.E. 941, 942 (1906)), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 5 of 15 CHINS. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of
establishing CHINS status, the State 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.
[11] A CHINS designation focuses on the condition of the child rather than on an
act or omission by the parent. N.E., 919 N.E.2d at 105. Whereas the acts or
omissions of one parent can cause a condition that creates the need for court
intervention,
[a] CHINS adjudication can also come about through no wrongdoing on the part of either parent, e.g., where a child substantially endangers the child’s own health or the health of another individual; or when a child is adjudicated a CHINS because the parents lack the financial ability to meet the child’s extraordinary medical needs. While we acknowledge 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.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 6 of 15 Id. (citations omitted). A trial court need not wait until a tragedy occurs to
intervene. In re A.H., 913 N.E.2d 303, 311 (Ind. Ct. App. 2009).
[12] Father alleges that he was denied the opportunity to be heard to contest the
CHINS designation. Due process requires that a person be afforded the
opportunity to be heard at a meaningful time and in a meaningful manner. In re
K.D., 962 N.E.2d 1249, 1257 (Ind. 2012). A parent’s right to raise one’s
children is protected by due process. McBride v. Monroe Cnty. Office of Family &
Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). Due process gives parents
the right to a contested factfinding hearing in CHINS proceedings. K.D., 962
N.E.2d at 1259.
[13] As part of his due process argument, Father appears to argue that DCS failed to
notify him about any of the proceedings before the Children were designated
CHINS on June 26, 2015. In its CHINS petition, DCS alleged that its
representative contacted Father by telephone on April 30, 2015, concerning the
circumstances surrounding the removal of the children from Mother.
Appellant’s App. at 57. On June 18, 2015, a summons and advisement of
parental rights were sent to Father in South Carolina. On July 6, 2015, Father
signed and dated an advisement of parental rights regarding CHINS
proceedings. Id. at 124. The chronological case summary shows that after he
became aware of the CHINS proceedings, he requested and received counsel
through the public defender’s office, and the trial court vacated a default
hearing, proceeded with pretrial conferences on September 18 and October 2,
2015, and held a factfinding hearing on October 26, 2015.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 7 of 15 [14] Father asserts that even if notice was established, he was nevertheless denied
due process by the fact that the CHINS determination had already been made
before the trial court conducted his factfinding hearing. He cites as support In re
S.A., 15 N.E.3d 602, 610 (Ind. Ct. App. 2014), clarified on reh’g, 27 N.E.3d 287
(2015), trans. denied (2015). In S.A., DCS removed a child from the mother after
a report that the mother was using heroin and was in a violent relationship with
her boyfriend. The child was placed with the grandmother. Id. at 605. DCS
filed a CHINS petition and attempted to contact the child’s father via
Facebook. Id. The father was on active duty in the U.S. Navy and was
stationed in Texas. When he became aware of the proceedings, he requested
counsel, denied the CHINS allegations, and sought to establish paternity.
Before the paternity test results were available, the trial court adjudicated the
child a CHINS. Once paternity was established, the father requested a
factfinding hearing. Meanwhile, the father moved back to Indiana and had
daily supervised visitation with the child. Id. at 606. After the factfinding
hearing, the trial court issued an order continuing the CHINS adjudication.
The father appealed, claiming insufficiency of evidence, and this Court reversed
on sufficiency grounds but addressed sua sponte its due process concerns based
on the fact that the child had been adjudicated a CHINS “as to [the] father”
before the father had his factfinding hearing. Id. at 608-10. The S.A. court
concluded that although the CHINS determination focuses on the condition of
the child and should therefore not be issued as to a specific parent, a separate
analysis is necessary where allegations are being made against both parents and
one of them denies those allegations. Id. at 609 (citing N.E., 919 N.E.2d at 105- Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 8 of 15 06 and K.D., 962 N.E.2d at 1256-57). 3 In addressing its reasons for continuing
the child’s CHINS status, the trial court emphasized the father’s post-traumatic
stress disorder, failure to establish paternity sooner, and inexperience in
parenting. Id.
[15] At first glance, S.A. bears factual similarities to this case: an out-of-state father,
a CHINS designation before the father’s factfinding hearing, and allegations of
shortcomings by each of the parents. However, here, the CHINS petition did
not raise any allegations against Father other than his inability to protect the
Children while they were in Mother’s care. 4 Also, Father wanted only
unsupervised visits in South Carolina. Most importantly, Father expressly
waived the factfinding and now complains that the continuing of the CHINS
3 On rehearing, the S.A. court clarified its original opinion as follows:
When the CHINS adjudication can involve both parents at the same time, it should involve both parents at the same time so there is one adjudication as to all facts pertaining to the entire matter. If multiple hearings are unavoidable, then the trial court should, if at all possible, refrain from adjudicating the child a CHINS until evidence has been heard from both parents. And if an adjudication is unavoidable before evidence has been heard from the second parent, then the trial court must give meaningful consideration to the evidence provided by the second parent in determining whether the child remains a CHINS. S.A., 27 N.E.3d at 292-93 (internal citation and quotation marks omitted), opinion on reh’g.
4 As for the Children’s report of Father smoking marijuana and fighting with his girlfriend, these allegations were not specified in the CHINS petition but were considered as part of Father’s parent participation order. To the extent that Father now objects on the basis of hearsay, we find that he has failed to preserve this alleged error and that hearsay is nevertheless admissible during a dispositional hearing. See In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014) (“Failure to object to the admission of evidence at trial normally results in waiver and precludes appellate review.”); see also K.D., 962 N.E.2d at 1259 (stating that at dispositional hearing, court can admit evidence otherwise excludable as hearsay).
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 9 of 15 designation amounts to a denial of his right to be heard in a meaningful time
and meaningful manner.
[16] We disagree. Due process required the trial court to conduct a factfinding
hearing, which it did. At the beginning of the factfinding hearing, Father’s
counsel stated, “Judge, I’d spoken with my client extensively, he’d like to enter
a waiver to the CHINS case today.” Tr. at 5. 5 The factfinding hearing afforded
Father the opportunity to contest the CHINS determination and to present
evidence that he was neither using marijuana nor engaging in any
confrontational or abusive conduct toward his girlfriend. By waiving the right
to present evidence during that hearing, he forfeited that opportunity. Based on
the foregoing, we conclude that Father was not denied due process.
Section 2 – The findings and evidence are sufficient to support the trial court’s decision to continue the Children’s placement with Aunt. [17] Father challenges the sufficiency of the findings and evidence to support the
CHINS placement 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
5 At the dispositional hearing on December 11, 2015, Father’s counsel stated with respect to the Children’s placement with Aunt, “We have a father that wants the girls. The reason that he waived was that he wanted [them] to stay with their aunt.” Id. at 23.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 10 of 15 evidence and reasonable inferences most favorable to the trial court’s decision.
K.D., 962 N.E.2d at 1253. 6 Where the trial court issues findings of fact and
conclusions thereon, we apply a two-tiered standard of review. In re R.P., 949
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. “We must accept the ultimate facts as stated by the
trial court if there is evidence to sustain them.” Id.
[18] Father challenges the sufficiency of the findings with respect to the Children’s
placement with Aunt, characterizing them as merely boilerplate. Indiana Code
Section 31-34-19-10(a) requires the trial court to include in the dispositional
decree written findings and conclusions upon the record concerning the child’s
needs for “care, treatment, rehabilitation, or placement” and the efforts to
“reunite the child with the parent, guardian, or custodian.” 7 (Emphasis
added.) Subsection (b) of the statute allows the trial court to incorporate into
6 In his brief, Father claims that “the deferential standard of review does not have any legitimate foundation under Indiana Law.” Appellant’s Br. at 12. Citing a law review article as support, he posits that we should apply a de novo standard when reviewing CHINS determinations. We are bound by our supreme court’s precedent. Grabill Cabinet Co., v. Sullivan, 919 N.E.2d 1162, 1167 (Ind. Ct. App. 2010).
7 The statute also requires the trial court to issue findings on the need for the participation by the parent, guardian, or custodian in the child’s care plan; efforts to prevent removal; the family services offered and provided; the court’s reasons for the disposition, and whether the child has dual status under the statute. Ind. Code § 31-34-19-10(a)(2) through -(a)(6). Father does not challenge the trial court’s findings on these matters.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 11 of 15 the dispositional decree a finding or conclusion from the predispositional
report.
[19] Here, the trial court ordered that the children “continue[] in current placement”
in “relative care,” with a permanency plan of “reunification with parent(s).”
Appellant’s App. at 48. The dispositional order incorporated Father’s parent
participation order and expressly adopted DCS’s recommendations as listed in
the predispositional order. Id. These include the following placement
recommendations: 8
a. …. The Children have been placed with Aunt who is their maternal great-aunt.
b. …. This is the least restrictive placement for [] the Children as the placement is capable of meeting the children’s needs.
c. …. This least interferes with the family autonomy for the Children not only because the placement is with their maternal great-aunt, but also because the environment is safe and stable.
d. …. This [is] the least disruptive family life for the Children because this environment provides safety, stability and allows the Children to still have a connection to their family.
e. …. This is the least restraint on the freedom of [] the Children as well as Mother since this placement allows Mother to visit with the children. The placement also supervises the visits between the Children and Mother which allows for visits to happen more frequently.
8 To the extent that the predispositional report, dispositional order, and other court documents contain proper names, we have replaced those references with the designations indicated earlier in this opinion.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 12 of 15 f. …. The placement of the Children provides reasonable opportunity for the Children because it is a relative placement and the relative continues to promote the closeness of Mother and the Children.
g. …. The placement is consistent with the safety and best interests of the Children because the placement provides an environment that is safe and provides stability.
3. Placement with the Children’s suitable and willing blood or adoptive relative caretaker, including a non-custodial parent, grandparent, aunt, uncle or adult sibling has been considered and placed with [relative]. A criminal history check has been conducted and the results of the check are as follows: Aunt: A criminal history check has been conducted and the results of the check are as follows: Criminal history checked was appropriate, and the Children were able to be placed with this relative. Finger prints: Qualified Sex offender: No history Criminal history: No history
Id. at 97-98.
[20] These findings are sufficient to support the Children’s continued placement
with Aunt. As for the evidence supporting the placement decision, Father was
afforded the opportunity to present evidence to contest the Children’s continued
placement with Aunt instead of with him but forfeited it when he waived
factfinding. He cannot now complain that the trial court failed to consider his
caregiving qualities as compared to Aunt’s.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 13 of 15 [21] Finally, Father argues that, for all practical purposes, the CHINS finding will
result in the termination of his parental rights. We disagree. The transcript
from the dispositional hearing reveals that the trial court attempted to
accommodate and give helpful advice to Father as to how he can avoid that
precise outcome:
THE COURT: Well, here’s what I’m gonna do. I’m, I’m not gonna authorize unsupervised … Well, I’m not gonna order unsupervised parenting time for father. I’ll put the authorization out there for him to have unsupervised time. When, on the, on positive recommendations of DCS, Guardian ad Litem and service providers, but I’m gonna leave it to the team to decide when that’s appropriate and, right, now, sir, you’re … as it stands now, you can’t take the girls back to South Carolina …. You can come up here and visit.
….
Okay. Sir, I suggest that you continue to talk to your children on the phone. Try and schedule as many visits up here as you can. Trying to re-establish that relationship.
I’m gonna direct you to talk to your attorney. I understand your position. Right now, the decision I’m making, I understand that you’re their father and it may be that, at some point, we are sending those kids to South Carolina, but I need a little bit more information …
You need to participate in services, you need to stay in phone
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 14 of 15 contact with your, your kids, and when you’re in Indianapolis, you need to schedule visits and we’ll see where we are.
Tr. at 22, 25-26.
[22] Simply put, Father was not denied due process. He was given the opportunity
to be heard, and he forfeited the opportunity by waiving factfinding. The
findings and evidence are sufficient to support the Children’s continued
placement with Aunt. Accordingly, we affirm.
[23] Affirmed.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016 Page 15 of 15