MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 25 2015, 9:53 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANTS PRO SE ATTORNEYS FOR APPELLEE L.E. and E.E. Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: August 25, 2015 L.E. III, B.E. & A.E. (Minor Court of Appeals Case No. 49A05-1412-JC-548 Children), Children in Need of Services Appeal from the Marion Superior Court and The Honorable Marilyn Moores, E.E. (Mother) & L.E. (Father), Judge The Honorable Danielle Gaughan, Appellants-Respondents, Magistrate v. Trial Court Cause Nos. 49D09-1404-JC-729 49D09-1404-JC-730 The Indiana Department of 49D09-1404-JC-731 Child Services, Appellee-Petitioner
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 1 of 8 Baker, Judge.
[1] E.E. (Mother) and L.E. (Father) appeal the judgment of the juvenile court
finding their children to be children in need of services (CHINS). Finding that
the juvenile court’s judgment is supported by sufficient evidence and that
Mother and Father have failed to make a cogent argument on appeal, we
affirm.
Facts [2] Mother and Father have three children, L.E. III, B.E., and A.E. (the children).
The children are currently four, three, and two years of age, respectively. On
April 4, 2014, the Department of Child Services (DCS) received a report of
possible domestic violence in the home and that the home was unsafe for the
children. DCS sent Anna Pfau, a family case manager (FCM), to assess the
situation.
[3] When Pfau arrived at the home, Mother refused to allow her to enter. Mother
asked Pfau if she could give her a moment to clean up. Pfau waited for a few
minutes until Mother returned to inform Pfau that she would have to come
back another time. While Mother had the door open, Pfau could observe safety
hazards inside the home. After Mother again refused to allow Pfau inside, Pfau
contacted the Indianapolis Metropolitan Police Department (IMPD) and
requested that officers come to the home to conduct a child welfare check.
[4] When the officers arrived, they observed Mother and Father putting the
children in the car and preparing to leave. After speaking with Mother and Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 2 of 8 Father, the officers were able to convince them to allow Pfau to conduct her
assessment. Upon entering the home, Pfau observed debris, including trash
covering much of the floor, rotten food in the refrigerator leaking onto the
kitchen floor, pesticides within reach of the children, and other safety hazards
for the children, such as falling and choking hazards.
[5] When Pfau was preparing paperwork, Father told the officers that he believed
they were violating his constitutional rights. One of the officers told Father to
sit down, but he refused, and instead “moved as if to strike the officer.” Tr. p.
194. At this point, the officers tried to physically subdue Father, who was
attempting to fight them off. Father was arrested at the end of the ordeal.
[6] On April 8, 2014, DCS removed the children from the care of their parents and
filed a petition alleging them to be CHINS. On September 29, 2014, the
juvenile court held a factfinding hearing. At that hearing, the juvenile court
heard evidence regarding Mother’s significant history of mental health
hospitalizations and treatment. The evidence indicated that Mother suffers
from delusions and hallucinations and has been diagnosed with schizoaffective
disorder. A doctor who had examined Mother testified that Mother believed
she could hear the thoughts of other people and interpret those thoughts. Pfau
testified that after the children were removed from the home, she received many
calls and text messages from Mother in which she seemed extremely paranoid,
accusing Pfau of not working for DCS and “having friends in Washington.”
Tr. p. 197. The results of a psychological evaluation conducted after the
children’s removal indicated that Mother was “extremely disorganized and
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 3 of 8 difficult to follow” and that her “thought process evidence[d] paranoia.” DCS
Ex. 1. The juvenile court also heard testimony indicating that Mother had been
prescribed anti-psychotic medication that she had not been taking.
[7] As for Mother and Father’s participation in the services that had been provided
since the children’s removal, a home-based service provider testified that she
did not recommend that the children be returned to the home at the time of the
hearing. The service provider testified that Mother was the primary caregiver
and that Father was not assisting Mother in caring for the children. The service
provider feared that if the children were to be returned at that time, the situation
would simply revert back to the way it was prior to DCS’s involvement.
[8] Following the hearing, the juvenile court found the children to be CHINS. On
October 28, 2014, the juvenile court held a dispositional hearing and ordered
Mother and Father to participate in reunification services. Mother and Father
now appeal.1
Discussion and Decision [9] Our review of a juvenile court’s determination in a CHINS proceeding is
governed by Indiana Trial Rule 52. In re T.S., 906 N.E.2d 801, 804 (Ind. 2009).
1 Several references in Mother and Father’s brief lead us to believe that they may actually wish to appeal DCS’s substantiation of neglect rather than the juvenile court’s CHINS finding. However, even if we wished to consider the merits of the substantiation, there is nothing in the record indicating that Mother and Father have exhausted their remedies at the agency level. Mother and Father have the right to contest the substantiation, however, they must do so within thirty days of being notified of it. 465 Ind. Admin. Code § 3- 2-1; Ind. Code § 31-33-26-8.
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 4 of 8 That rule provides that “the court on appeal shall not set aside the findings or
judgment unless clearly erroneous and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial
Rule 52(A). We first consider whether the evidence supports the findings, and
then we consider whether the findings support the judgment. In re T.S., 906
N.E.2d at 804. We view all of the evidence and the reasonable inferences to be
drawn from it in the light most favorable to the judgment. Id.
[10] Because a CHINS proceeding is a civil action, DCS was required to prove by a
preponderance of the evidence that the children were CHINS as defined in the
juvenile code. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). Here, DCS alleged
that the children were CHINS pursuant to Indiana Code section 31-34-1-1,
which provides that a child is a child in need of services if, before the child
becomes eighteen years of age:
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 25 2015, 9:53 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANTS PRO SE ATTORNEYS FOR APPELLEE L.E. and E.E. Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: August 25, 2015 L.E. III, B.E. & A.E. (Minor Court of Appeals Case No. 49A05-1412-JC-548 Children), Children in Need of Services Appeal from the Marion Superior Court and The Honorable Marilyn Moores, E.E. (Mother) & L.E. (Father), Judge The Honorable Danielle Gaughan, Appellants-Respondents, Magistrate v. Trial Court Cause Nos. 49D09-1404-JC-729 49D09-1404-JC-730 The Indiana Department of 49D09-1404-JC-731 Child Services, Appellee-Petitioner
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 1 of 8 Baker, Judge.
[1] E.E. (Mother) and L.E. (Father) appeal the judgment of the juvenile court
finding their children to be children in need of services (CHINS). Finding that
the juvenile court’s judgment is supported by sufficient evidence and that
Mother and Father have failed to make a cogent argument on appeal, we
affirm.
Facts [2] Mother and Father have three children, L.E. III, B.E., and A.E. (the children).
The children are currently four, three, and two years of age, respectively. On
April 4, 2014, the Department of Child Services (DCS) received a report of
possible domestic violence in the home and that the home was unsafe for the
children. DCS sent Anna Pfau, a family case manager (FCM), to assess the
situation.
[3] When Pfau arrived at the home, Mother refused to allow her to enter. Mother
asked Pfau if she could give her a moment to clean up. Pfau waited for a few
minutes until Mother returned to inform Pfau that she would have to come
back another time. While Mother had the door open, Pfau could observe safety
hazards inside the home. After Mother again refused to allow Pfau inside, Pfau
contacted the Indianapolis Metropolitan Police Department (IMPD) and
requested that officers come to the home to conduct a child welfare check.
[4] When the officers arrived, they observed Mother and Father putting the
children in the car and preparing to leave. After speaking with Mother and Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 2 of 8 Father, the officers were able to convince them to allow Pfau to conduct her
assessment. Upon entering the home, Pfau observed debris, including trash
covering much of the floor, rotten food in the refrigerator leaking onto the
kitchen floor, pesticides within reach of the children, and other safety hazards
for the children, such as falling and choking hazards.
[5] When Pfau was preparing paperwork, Father told the officers that he believed
they were violating his constitutional rights. One of the officers told Father to
sit down, but he refused, and instead “moved as if to strike the officer.” Tr. p.
194. At this point, the officers tried to physically subdue Father, who was
attempting to fight them off. Father was arrested at the end of the ordeal.
[6] On April 8, 2014, DCS removed the children from the care of their parents and
filed a petition alleging them to be CHINS. On September 29, 2014, the
juvenile court held a factfinding hearing. At that hearing, the juvenile court
heard evidence regarding Mother’s significant history of mental health
hospitalizations and treatment. The evidence indicated that Mother suffers
from delusions and hallucinations and has been diagnosed with schizoaffective
disorder. A doctor who had examined Mother testified that Mother believed
she could hear the thoughts of other people and interpret those thoughts. Pfau
testified that after the children were removed from the home, she received many
calls and text messages from Mother in which she seemed extremely paranoid,
accusing Pfau of not working for DCS and “having friends in Washington.”
Tr. p. 197. The results of a psychological evaluation conducted after the
children’s removal indicated that Mother was “extremely disorganized and
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 3 of 8 difficult to follow” and that her “thought process evidence[d] paranoia.” DCS
Ex. 1. The juvenile court also heard testimony indicating that Mother had been
prescribed anti-psychotic medication that she had not been taking.
[7] As for Mother and Father’s participation in the services that had been provided
since the children’s removal, a home-based service provider testified that she
did not recommend that the children be returned to the home at the time of the
hearing. The service provider testified that Mother was the primary caregiver
and that Father was not assisting Mother in caring for the children. The service
provider feared that if the children were to be returned at that time, the situation
would simply revert back to the way it was prior to DCS’s involvement.
[8] Following the hearing, the juvenile court found the children to be CHINS. On
October 28, 2014, the juvenile court held a dispositional hearing and ordered
Mother and Father to participate in reunification services. Mother and Father
now appeal.1
Discussion and Decision [9] Our review of a juvenile court’s determination in a CHINS proceeding is
governed by Indiana Trial Rule 52. In re T.S., 906 N.E.2d 801, 804 (Ind. 2009).
1 Several references in Mother and Father’s brief lead us to believe that they may actually wish to appeal DCS’s substantiation of neglect rather than the juvenile court’s CHINS finding. However, even if we wished to consider the merits of the substantiation, there is nothing in the record indicating that Mother and Father have exhausted their remedies at the agency level. Mother and Father have the right to contest the substantiation, however, they must do so within thirty days of being notified of it. 465 Ind. Admin. Code § 3- 2-1; Ind. Code § 31-33-26-8.
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 4 of 8 That rule provides that “the court on appeal shall not set aside the findings or
judgment unless clearly erroneous and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial
Rule 52(A). We first consider whether the evidence supports the findings, and
then we consider whether the findings support the judgment. In re T.S., 906
N.E.2d at 804. We view all of the evidence and the reasonable inferences to be
drawn from it in the light most favorable to the judgment. Id.
[10] Because a CHINS proceeding is a civil action, DCS was required to prove by a
preponderance of the evidence that the children were CHINS as defined in the
juvenile code. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). Here, DCS alleged
that the children were CHINS pursuant to Indiana Code section 31-34-1-1,
which provides that a child is a child in need of services if, before the child
becomes eighteen 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.
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 5 of 8 [11] Mother and Father begin their argument by claiming that FCM Pfau’s initial
assessment of their home violated their right against unreasonable searches and
seizures protected by the Fourth and Fourteenth Amendments to the U.S.
Constitution. Mother and Father claim that the search was motivated by racial
prejudice against Father, who is Black. However, Mother and Father make no
attempt to develop an argument in support of these allegations, and we decline
to develop an argument on their behalf.2
[12] Furthermore, Mother and Father have waived these issues by failing to raise
them before the juvenile court. Issues not raised before the trial court are
waived on appeal. In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007). Our
Supreme Court has explained that, “[a]t a minimum, a party must show that it
gave the trial court a bona fide opportunity to pass upon the merits of the claim
before seeking an opinion on appeal.” Endres v. Ind. State Police, 809 N.E.2d
320, 322 (Ind. 2004). Therefore, even had these constitutional arguments been
developed in Mother and Father’s appellate brief, we would decline to consider
such arguments for the first time on appeal.
2 While we acknowledge that Mother and Father bring this appeal pro se, “pro se litigants are held to the same standard as are licensed lawyers.” Akiwumi v. Akiwumi, 23 N.E.3d 734, 740 (Ind. Ct. App. 2014). Indiana Appellate Rule 46 provides that the argument section of a party’s brief “must contain the contentions of the appellant on the issue presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on . . . .” Mother and Father fail to meet this standard. However, we will attempt to deal with Mother and Father’s arguments on the merits to the extent that we can understand them.
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 6 of 8 [13] Mother and Father devote the remainder of their brief to pointing out instances
where they disagree with the trial court’s factual findings. Mother and Father
do not argue that the evidence was insufficient to support the trial court’s
findings on any of these points. Rather, they simply allege that the trial court’s
findings are incorrect. After recounting the facts, Mother and Father devote
their entire argument to (1) questioning Pfau’s credibility and the veracity of her
testimony; (2) focusing on testimony that portrayed Mother’s mental state in a
positive light; and (3) claiming that the home-based service provider lied to
them about the CHINS process.3 Appellant’s Br. p. 3-8.
[14] The juvenile court had evidence before it that the children were living in
extremely dirty conditions and surrounded by numerous safety hazards. The
evidence also indicated that Father let the entire burden of caring for the
children fall on Mother, who suffered from mental illnesses for which she was
not taking her prescribed medication. We cannot say that the juvenile court’s
conclusion that the children were CHINS was clearly erroneous given this
evidence. To the extent that Mother and Father’s arguments even relate to
evidence presented at trial,4 they amount to a request to reweigh the evidence
and judge witness credibility, which we may not do.
3 Mother and Father’s reply brief proceeds in the same fashion, beginning with their assertion that: “The witnesses[’] credibility should be further questioned, it is only their perspective and they have admitted faults in their own credibility.” Reply Br. p. 2. 4 Even if we wished to reweigh the evidence, because Mother and Father have provided no citation to the record, we cannot determine whether their version of events finds any support in the evidence.
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 7 of 8 [15] The judgment of the juvenile court is affirmed.
Vaidik, C.J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015 Page 8 of 8