W.W. and A v. v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 28, 2016
• Docket: 52A02-1510-JC-1778
• Status: Published

Opinion

FILED MEMORANDUM DECISION Apr 28 2016, 7:44 am

Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court 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.

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Brooklyn , Indiana Attorney General of Indiana

Mark Small Robert J. Henke Indianapolis, Indiana Deputy Attorney General

Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

W.W. and A.V., April 28, 2016 Appellants-Defendants, Court of Appeals Case No. 52A02-1510-JC-1778 v. Appeal from the Miami Circuit Court Indiana Department of Child The Honorable Timothy P. Spahr, Services, Judge Appellee-Plaintiff. Trial Court Cause No. 52C01-1502-JC-5

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 52A02-1510-JC-1778 | April 28, 2016 Page 1 of 5 [1] W.W. (Mother) and A.V. (Father) (collectively, Parents) appeal the trial court’s

determination that their daughter, S.V. (Child), is a Child in Need of Services

(CHINS). Parents argue that the evidence was insufficient to support the

CHINS adjudication.

[2] We affirm.

Facts & Procedural History

[3] During the early morning hours of February 13, 2015, police executed a search

warrant at Parents’ home and discovered evidence of a recently active

methamphetamine lab in the basement. Five people were present in the home,

including Mother, Father, and Child. Upon entering the home, officers

encountered thick smoke and chemical fumes so strong that the house had to be

evacuated. As a result of their exposure to the fumes, Child and three of the

responding officers had to be treated at a local hospital. Hair follicle testing

indicated that Mother, Father, and Child had all ingested methamphetamine.

[4] As a result of these events, the Department of Child Services (DCS) removed

Child from Parents’ care and filed a CHINS petition. Following a fact-finding

hearing, the trial court entered its order adjudicating Child a CHINS. The trial

court entered its dispositional decree on October 6, 2015, and Parents now

appeal.

Discussion & Decision

Court of Appeals of Indiana | Memorandum Decision 52A02-1510-JC-1778 | April 28, 2016 Page 2 of 5 [5] Where, as here, a juvenile court enters findings of fact and conclusions of law in

support of its CHINS determination, we apply a two-tiered standard of review.

Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 N.E.2d 444, 450 (Ind. Ct. App.

2007). First, we consider whether the evidence supports the findings, and

second, whether the findings support the judgment. Id. We will 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. While we defer to the juvenile court’s findings of

fact, we do not do so as to its conclusions of law. Id. Additionally, we will not

reweigh the evidence; rather, we consider the evidence favorable to the

judgment and draw all reasonable inferences in favor of the judgment. Id.

[6] “Because a CHINS proceeding is a civil action, the State 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). In reviewing the

sufficiency of the evidence supporting a CHINS determination, we consider

only the evidence most favorable to the judgment and the reasonable inferences

flowing therefrom.1 In re J.L., 919 N.E.2d 561, 563 (Ind. Ct. App. 2009).

1 Father briefly argues that our standard of review is de novo, apparently contending that the issue presented is one of personal jurisdiction. This argument is waived, both because Father did not raise it below and because he does not develop his argument or cite authority supporting it. See Ind. Appellate Rule 46(A)(8)(a) (requiring each contention be supported by cogent reasoning and citations); A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013) (failure to support arguments with cogent reasoning results in waiver on appeal), trans. denied; Vance v. State, 949 N.E.2d 1269, 1271 (Ind. Ct. App. 2011) (noting that failure to make a timely objection results in waiver of arguments based on a lack of personal jurisdiction).

Court of Appeals of Indiana | Memorandum Decision 52A02-1510-JC-1778 | April 28, 2016 Page 3 of 5 [7] To support a CHINS adjudication, DCS must prove three elements by a

preponderance of the evidence: (1) that the child is under eighteen years of age,

(2) one of eleven different statutory circumstances exist that would make the

child a CHINS, and (3) that the child needs care, treatment, or rehabilitation

that he or she is not receiving and is unlikely to be provided or accepted without

the coercive intervention of the court. In re K.D., 962 N.E.2d 1249, 1253 (Ind.

2012). Neither Mother nor Father challenge the trial court’s findings with

respect to the second and third elements. The sole issue presented on appeal is

whether DCS established that Child was under eighteen years of age. Although

Mother and Father have filed separate briefs, their arguments are essentially the

same. They note that the trial court found that Child was twelve years old, but

contend that no testimony or exhibits were presented at the fact-finding hearing

to establish Child’s age or date of birth.

[8] We note that the Chronological Case Summary (CCS) lists Child’s date of birth

as December 27, 2002. Additionally, the CASA filed a letter Child had written

to the trial court. The attached cover sheet lists Child’s date of birth as

December 27, 2002, and in the letter, Child states that she is twelve years old.2

Waiver notwithstanding, there is no question that the trial court had both subject matter and personal jurisdiction over this case. See K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006) (explaining that “[s]ubject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs” and personal jurisdiction requires that the parties be appropriately served). 2 In her reply brief (in which she has cited no authority whatsoever), Mother argues that it was improper for the trial court to consider these documents because they “were never offered as exhibits or otherwise entered into evidence.” Mother’s Reply Brief at 5. In response to the State’s contention that the trial court presumably took judicial notice of its own files, see Ind. Evidence Rule 201 (providing, in relevant part, that a court may sua sponte take judicial notice of the records of a court of this state), Mother makes the conclusory assertion

Court of Appeals of Indiana | Memorandum Decision 52A02-1510-JC-1778 | April 28, 2016 Page 4 of 5 Moreover, multiple witnesses at the fact-finding hearing referred to Child as a

“child” or “juvenile.” Even Mother and Father referred to Child as “child” and

“minor child[]” in various motions. Mother’s Appendix at 38, 59, 60. Finally,

because Child was present in the courtroom, the trial court was able to

conclude based on its own observations that Child was under eighteen years

old. Based on the foregoing, we conclude that the trial court’s finding that

Child was under eighteen years of age was supported by the evidence.

[9] Judgment affirmed.

[10] Bailey, J. and Bradford, J., concur.

that “it did not.” Mother’s Reply Brief at 5. Mother’s argument in this regard is undeveloped and unpersuasive. We note further that Mother did not raise any objection below to the CASA’s filing or the trial court’s consideration thereof.

Court of Appeals of Indiana | Memorandum Decision 52A02-1510-JC-1778 | April 28, 2016 Page 5 of 5