In the Matter of: La.H., Le.H., Lo.H., Ma.H., S.W., W.H., and Me.H. (Minor Children), Children in Need of Services and M.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 31, 2017
• Docket: 90A02-1609-JC-2135
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing May 31 2017, 9:39 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeremy K. Nix Curtis T. Hill, Jr. Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana Huntington, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: La.H., Le.H., May 31, 2017 Lo.H., Ma.H., S.W., W.H., and Court of Appeals Case No. Me.H. (Minor Children), 90A02-1609-JC-2135 Children in Need of Services Appeal from the Wells Circuit and Court The Honorable Kenton W. M.H. (Father), Kiracofe, Judge Appellants-Respondents, Trial Court Cause Nos. 90C01-1603-JC-15 v. 90C01-1603-JC-16 90C01-1603-JC-17 The Indiana Department of 90C01-1603-JC-18 Child Services, 90C01-1603-JC-20 90C01-1603-JC-21 Appellee-Petitioner. 90C01-1603-JC-22

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 1 of 11 Case Summary and Issue [1] M.H. (“Father”) appeals the juvenile court’s adjudication of his seven children

(“Children”) as children in need of services (“CHINS”). Father raises four

issues on appeal, which we consolidate and restate as a single issue: whether the

juvenile court’s CHINS determination is clearly erroneous. Concluding the

juvenile court’s CHINS determination is not clearly erroneous, we affirm.

Facts and Procedural History [2] Father and R.H. (“Mother”)1 are the parents of six children, ten-year-old

Ma.H., eight-year-old Le.H, seven-year-old Lo.H., five-year-old W.H., three-

year-old La.H., and one-year-old Me.H. Mother also has two children from a

prior relationship, eighteen-year-old R.W. and fifteen-year-old S.W. S.W.

requires the assistance of a wheelchair and is unable to verbally communicate

due to cerebral palsy.

[3] On March 28, 2016, the Indiana Department of Child Services (“DCS”)

received a report alleging Father had sexually abused his stepdaughter, R.W.,

multiple times throughout her childhood. One week prior to the DCS receiving

that report, then seventeen-year-old R.W. left home without permission and

1 Mother does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 2 of 11 began residing with her maternal aunt and uncle. R.W. turned eighteen on the

same day the DCS began its investigation.

[4] In response to the report and allegations, Wendy Garrett, a DCS Family Case

Manager, visited Mother and Father’s home. Father answered the door but

refused to permit Garrett to enter the home. Mother and Father refused to

cooperate with the investigation at that time.

[5] Following an interview with R.W. concerning her allegations of sexual abuse,

the DCS removed the Children from the home and placed them with their

maternal aunt and uncle. While removing the Children, Garrett observed the

Children had “incredibly poor hygiene” and noted the Children’s hair was

“matted.” Transcript, Volume II at 16. Garrett further observed Me.H.’s

diaper was “literally falling off, leaking.” Id. As to the condition of the home,

Garrett described it as “deplorable” and “unsanitary.” Id. Garrett observed

food, debris, and trash littering the floor of the home, a cluttered kitchen filled

with dirty dishes, and piles of soiled clothing throughout the home. Garrett

also noted the home did not appear to have a shower or access to water except

through a hose brought in from outside the home. There also appeared to be

structural issues with the home with portions of the ceiling collapsing over the

Children’s sleeping space. Garrett was not permitted to view the upstairs area

because it “wasn’t anything that had been worked on.” Id. at 19.

[6] On March 31, 2016, the DCS filed verified petitions alleging each child to be a

CHINS. The DCS later moved to dismiss the CHINS petition as to R.W.

Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 3 of 11 because she reached the age of eighteen. Mother and Father denied the

allegations contained in the verified petitions.

[7] On June 10, 2016, the juvenile court held a fact-finding hearing at which R.W.

testified concerning her allegations of sexual abuse. R.W. testified the sexual

abuse began when she was a young girl. During one instance, R.W. stated

Father called her into the bedroom of their home. When she entered the room,

he pulled her on top of him and put his hands down her pants. R.W. did not

remember how old she was when this incident occurred. During another

instance when she was about twelve years old, R.W. awoke on the living room

couch and Father was on top of her. R.W. stated Father’s penis touched her

vagina. Father told R.W. not to tell anyone or he would do it again. R.W.

attempted to speak to Mother about the incident but was too embarrassed to do

so. When R.W. was about thirteen years old, Father told R.W. to take water to

their horses in the barn and insisted on coming with her. R.W. stated she knew

what Father was going to do. In the barn, Father ordered R.W. to lay on a bale

of hay and pulled his pants down. Father then inserted his fingers into R.W.’s

vagina. Father also inserted his penis into her vagina. R.W. stated the sexual

abuse stopped when she was about fifteen or sixteen years old.

[8] R.W. testified she did not believe Father has abused any of her siblings,

although she worried it may happen. She also stated that when she lived in the

home, she was responsible for helping Mother and Father with the other

Children, cleaning the house, and feeding and bathing S.W. R.W. also thought

Father punished S.W. with unnecessary force. Occasionally, S.W. would cry

Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 4 of 11 uncontrollably and the family struggled to calm her down. Father used to

spank her over and over in an attempt to make her stop, but she would not.

Mother would cry and tell Father “she’s not going to stop crying if [you] just

keep[] beating her.” Id. at 42.

[9] On June 11, 2016, the juvenile court issued its order which included its findings

of fact and conclusions thereon. The juvenile court found R.W.’s testimony

and allegations to be true and adjudicated all seven Children as CHINS.2 In

addition to the sexual abuse of R.W., the juvenile court also found the Children

to be CHINS due to the poor condition of the home, the fact Father remained

in the home after R.W.’s allegations came to light, and the fact R.W., who

provided care and supervision for the Children, was no longer living in the

home. The juvenile court ordered the Children to remain in relative placement.

On August 18, 2016, the juvenile court held a dispositional hearing at which it

adopted the DCS’ recommendations to have Mother and Father participate in

services including home based counseling, a parental assessment, random drug

screens, and a psychological evaluation. Father was also ordered to complete a

substance abuse assessment and sex offender treatment program. Father now

appeals. Additional facts will be added as necessary.

2 R.W. was not adjudicated as a CHINS.

Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 5 of 11 Discussion and Decision I. Standard of Review [10] When reviewing a juvenile court’s CHINS determination, we neither reweigh

the evidence nor reassess witness credibility. In re K.D., 962 N.E.2d 1249, 1253

(Ind. 2012). We consider only the evidence that supports the juvenile court’s

decision and reasonable inferences drawn therefrom. Id.

[11] Where, as here, the juvenile court enters findings of fact and conclusions sua

sponte following the fact-finding hearing, we apply a two-tiered standard of

review to the issues covered by the findings: (1) we determine whether the

evidence supports the findings, and (2) whether the findings support the

judgment. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). We will reverse only

upon a showing the court’s decision was clearly erroneous. In re K.D., 962

N.E.2d at 1253. A finding of fact is clearly erroneous if the record lacks

evidence, or reasonable inferences from the evidence, to support it. In re

Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied. The

judgment is clearly erroneous if we are left with a “definite and firm conviction

that a mistake has been made.” In re S.L., 997 N.E.2d 1114, 1123 (Ind. Ct.

App. 2013).

Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 6 of 11 II. CHINS Determination [12] Father contends the juvenile court’s judgment adjudicating the Children as

CHINS is clearly erroneous. The juvenile court adjudicated the Children as

CHINS under Indiana Code section 31-34-1-1,3 which provides,

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.

In other words, the statute requires the State to prove three basic elements: (1)

the parent’s actions or inactions have seriously endangered the children, (2) the

children’s needs are unmet, and (3) the children’s needs are unlikely to be met

without State intervention. In re S.D., 2 N.E.3d at 1287. Because a CHINS

3 The juvenile court also adjudicated S.W. a CHINS under Indiana Code section 31-34-1-2, which states, “[a] child is a child in need of services if before the child becomes eighteen (18) years of age the child’s physical or mental health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or custodian and the child needs care, treatment, or rehabilitation that the child is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court.”

Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 7 of 11 proceeding is a civil proceeding, the State must prove the child is a CHINS by a

preponderance of the evidence. In re K.D., 962 N.E.2d at 1253.

[13] Father first argues the juvenile court’s determination the Children are CHINS

due to the long-term sexual abuse of R.W. is clearly erroneous. Father cites to

In re D.H., 859 N.E.2d 737 (Ind. Ct. App. 2007). There, seventeen-year-old

S.L. alleged she had been molested by her stepfather for several years as a

young girl. The DCS removed the other five children from the home and filed

verified petitions alleging the children to be CHINS. In its fact-finding order,

the juvenile court found S.L.’s testimony to be credible, but specifically declined

to find the allegations to be true or not true. Based on its findings, the juvenile

court concluded that “if the allegations were true, the Children would be

endangered.” Id. at 744. On appeal, we reversed the juvenile court’s decision

as clearly erroneous, stating, “to permit the Children to be declared CHINS

based upon speculation that the Children would be endangered if the

allegations regarding S.L. were true would contravene the CHINS statutes.” Id.

[14] Father argues that, similar to In re D.H., the juvenile court’s decision was based

on speculation of sexual abuse.4 Father is incorrect and In re D.H. is of no

4 Father alleges “the [juvenile] court found R.W. credible despite the fact that her testimony did not conform to the CHINS petitions.” Corrected Brief of Appellant at 15. Although the juvenile court did not find the allegations in the CHINS petitions to be true in their entirety, Father’s contention R.W.’s testimony did not conform to the CHINS petitions is simply not accurate. In addition, Father also points to the juvenile court’s findings regarding R.W.’s refusal or inability to discuss the abuse with Mother and a prior interview with the DCS in which she denied any sexual abuse had occurred. We interpret this as a request to reweigh the evidence, which we will not do. In re K.D., 962 N.E.2d at 1253.

Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 8 of 11 benefit to him in this case. Unlike in In re D.H., the juvenile court specifically

found R.W.’s testimony to be credible and true. The juvenile court’s finding of

fact states, “The Court finds that the allegations contained in the Verified

Petitions Alleging Child in Need of Services . . . as modified consistent with the

testimony and resultant findings contained herein as to the sexual abuse of

[R.W.] are true.” Appendix of Appellant, Volume II at 169. Thus, the juvenile

court’s determination was not based on speculation, but upon testimony from

R.W. which it found to be true. We further note the CHINS statutes do not

require a court to wait until a tragedy occurs to intervene. In re A.H., 913

N.E.2d 303, 306 (Ind. Ct. App. 2009). And although R.W. stated she did not

believe Father has sexually abused any of the other Children, she did worry for

their safety and thought it could occur again. Given this evidence and the

juvenile court’s findings, we cannot say its adjudication of the Children as

CHINS is clearly erroneous.5

[15] Father also contends the juvenile court’s judgment regarding coercive

intervention of the court is clearly erroneous. Here, the juvenile court

determined coercive intervention was necessary because Mother and Father

remain living together, they did not comply with the DCS’ investigation, and

5 Even assuming the juvenile court’s judgment regarding the sexual abuse allegations is clearly erroneous, we note Father does not challenge the juvenile court’s determination the Children’s physical or mental conditions were seriously impaired or seriously endangered due to the poor condition of the home.

Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 9 of 11 they refused to acknowledge the Children’s poor living conditions or the sexual

abuse of R.W.

[16] Our supreme court has observed that the “coercive intervention” element

“guards against unwarranted State interference in family life, reserving that

intrusion for families where parents lack the ability to provide for their children,

not merely where they encounter difficulty in meeting a child’s needs.” In re

S.D., 2 N.E.3d at 1287 (internal quotations omitted). When determining

CHINS status under Indiana Code section 31-34-1-1, particularly the “coercive

intervention” element, courts “should consider the family’s condition not just

when the case was filed, but also when it is heard.” In re D.J., 68 N.E.3d 574,

580 (Ind. 2017) (citation omitted).

[17] The juvenile court’s CHINS order included factual findings supporting its

conclusion that coercive intervention was necessary at the time the DCS

received the initial report and allegations. At the time of the fact-finding

hearing, Mother and Father had only begun to participate in services. Those

services included homemaker and parent-aid services to both Mother and

Father. DCS Family Case Manager Alyssa Justice stated both parents were

complying with the services offered. However, Justice also stated Mother and

Father had only recently started participating in services and she would not feel

comfortable with the Children returning to Mother and Father’s home at that

time, given the severity of the allegations and the unimproved condition of the

home. Further, Justice stated there had been no acknowledgment from either

Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017 Page 10 of 11 parent of the DCS’ allegations. Accordingly, the juvenile court’s determination

that coercive intervention of the court was necessary is not clearly erroneous.6

Conclusion [18] The juvenile court’s CHINS order is not clearly erroneous. Accordingly, the

judgment of the juvenile court is affirmed.

[19] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

6 Because we affirm the juvenile court’s adjudication of the Children as CHINS under Indiana Code section 31-34-1-1, and S.W. is included in that adjudication, we do not separately address Father’s argument the juvenile court’s adjudication of S.W. as a CHINS under Indiana Code section 31-34-1-2 is clearly erroneous.

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