In the Matter of: V.K. (Minor Child), Child in Need of Services, and M v. (Mother) v. The Ind. Dept. of Child Services M v. v. J.K. (mem. dec.) ( 2016 )


Menu:
  • MEMORANDUM DECISION
    FILED
    Pursuant to Ind. Appellate Rule 65(D),                            Oct 14 2016, 9:32 am
    this Memorandum Decision shall not be
    regarded as precedent or cited before any                             CLERK
    Indiana Supreme Court
    Court of Appeals
    court except for the purpose of establishing                           and Tax Court
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
    M.V.                                                      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:                                         October 14, 2016
    V.K. (Minor Child), Child in                              Court of Appeals Case No.
    03A04-1604-JC-736
    Need of Services,
    Appeal from the Bartholomew
    and                                                       Circuit Court
    M.V. (Mother),                                            The Honorable Stephen R.
    Appellant-Respondent,                                     Heimann, Judge
    The Honorable Heather M. Mollo,
    v.                                                Magistrate
    Trial Court Cause Nos.
    The Indiana Department of                                 03C01-1505-JC-2515
    03D01-1401-DR-31
    Child Services,
    Appellee-Petitioner
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016    Page 1 of 16
    M.V. (Mother),
    Appellant-Respondent,
    v.
    J.K. (Father),
    Appellee-Petitioner
    Baker, Judge.
    [1]   M.V. (Mother) appeals the trial court’s decision to combine the permanency
    and custody hearings for her daughter, V.K., following the dissolution of
    Mother’s marriage to J.K. (Father) and the adjudication of V.K. as a Child in
    Need of Services (CHINS). Mother argues that the process of holding a
    combined hearing deprived her of her due process rights, that the trial court
    erred when it restricted her parenting time, and that the Department of Child
    Services (DCS) prematurely closed the CHINS case. Finding no due process
    violations and no other error, we affirm.
    Facts
    [2]   V.K. was born on November 12, 2012. Mother and Father married on
    December 12, 2012. They later separated, and on January 3, 2014, Father filed
    a petition to dissolve the marriage. He requested that the court conduct a
    provisional hearing to determine custody issues. On February 21, 2014, a
    provisional hearing took place, and the court awarded Father “temporary care,
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 2 of 16
    custody, and control” of V.K. App. p. 41. Mother had visits every other
    weekend.
    [3]   On May 17, 2015, Father asked a neighbor for a diaper and queried whether he
    could leave V.K. there while he attended a job interview. The neighbor noticed
    that the child’s clothes were soaked in urine and that she appeared to have a
    bad diaper rash. On May 18, 2015, Father approached the same neighbor and
    again left V.K. with the neighbor, even though the neighbor was unwilling to
    care for her while Father was at work. The neighbor observed that Father
    appeared to be under the influence when he brought the child over. The
    neighbor also noticed that V.K.’s diaper rash had worsened and that she was
    still in the same diaper from the previous day, and the neighbor took her to the
    emergency room. The hospital staff noted that the child had severe diaper rash
    that was likely the result of neglect.
    [4]   V.K. was removed from Father’s home by DCS, and Father was arrested for
    neglect of a dependent. On May 20, 2015, DCS filed a petition alleging that
    V.K. was a CHINS due to the severity of the diaper rash, concerns for neglect,
    and concerns for substance use such that the child’s safety could not be ensured.
    On July 10, 2015, the trial court found that V.K. was a CHINS.
    [5]   On September 22, 2015, the court issued a dispositional decree. It ordered
    Father to complete a substance use assessment and comply with any
    recommended treatment; it also ordered Father to participate in Fatherhood
    Engagement to address co-parenting, budgeting, transportation, and childcare,
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 3 of 16
    and to follow all recommendations. The court ordered Mother to participate in
    home based case management to address parenting, co-parenting, discipline,
    employment, and childcare, and to follow all recommendations; Mother was
    also ordered to complete a comprehensive evaluation to determine her need for
    substance use treatment and mental health treatment, and to complete any
    recommended treatment. The court also ordered both parents to, among other
    things, attend all scheduled visitations with V.K. and comply with all visitation
    rules and procedures, to submit to random drug screens within twenty-four
    hours of request or on demand, and to contact the family case manager every
    week to allow the manager to monitor compliance with the CHINS matter.
    [6]   Following this order, DCS requested authorization for a trial home visit with
    Father, stating that Father had been participating in Fatherhood Engagement
    and completing treatment goals, that Father had completed a substance abuse
    assessment and no recommendations were noted for him, that Father had been
    participating in overnight visits with V.K. and those visits were progressing
    well, and that it would be in the best interests of the child for a trial home visit
    to begin with Father. On September 28, 2015, the trial court granted the
    request, and V.K. returned to Father’s home.
    [7]   Meanwhile, on September 7, 2015, Mother and Father’s marriage was
    dissolved. The trial court did not determine custody at that time because of the
    ongoing CHINS case. On October 29, 2015, a periodic case review hearing
    took place in the CHINS case. The trial court noted that Father had complied
    with the child’s case plan but Mother had not. The trial court further noted that
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 4 of 16
    DCS and Father had concerns with Mother having unsupervised parenting time
    because of ongoing concerns for violence and Mother’s mental health. The trial
    court stated that it was appropriate to consider permanent placement of V.K.
    with Father; that Father had enhanced his ability to fulfill his parental
    obligations but that Mother had not; that Father had cooperated with DCS but
    that Mother could improve in her level of cooperation; and that Mother’s
    visitation with the child shall remain supervised.
    [8]   On January 14 and February 19, 2016, pursuant to the agreement of the parties,
    a combined permanency hearing in the CHINS case and custody modification
    hearing in the dissolution case took place. On March 7, 2016, the trial court
    awarded sole legal and primary physical custody of V.K. to Father, and it
    awarded Mother four hours of supervised parenting time every other week. It
    entered the order in both the CHINS case and in the dissolution case. On
    March 16, 2016, the trial court granted DCS’ motion to close the CHINS
    proceeding. Mother now appeals.1
    1
    Mother is appealing the orders in the dissolution case and in the CHINS case. She served notice of appeal
    to Father, but her caption on her appellate brief reflected only an appeal of the CHINS case and omitted the
    dissolution case. Thus, although Father had a right to file a brief in this appeal to contest Mother’s
    arguments regarding custody in the dissolution case, we understand why he did not do so. Because we try to
    resolve CHINS and child custody cases as expeditiously as possible and because we are ruling in his favor,
    we have not stayed the appellate proceeding to afford Father the chance to file a brief.
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016          Page 5 of 16
    Discussion and Decision
    [9]    Mother argues that the process of holding a combined hearing deprived her of
    her due process rights, that the trial court erred when it restricted her parenting
    time, and that DCS prematurely closed the CHINS case.
    I. Combined Hearing
    [10]   Mother first argues that she was deprived of her due process rights when the
    trial court combined the permanency and custody hearings and that the
    combined hearing created a high risk of error because it allowed DCS, rather
    than Father, to prove Father’s custody case.
    [11]   Due process protections bar “state action that deprives a person of life, liberty,
    or property without a fair proceeding.” In re G.P., 
    4 N.E.3d 1158
    , 1165 (Ind.
    2014) (citation omitted). Due process protections are vital during all stages of
    CHINS proceedings “because every CHINS proceeding has potential to
    interfere with the rights of parents in the upbringing of their children.” 
    Id. (internal quotation
    marks and citation omitted). Due process requires “‘the
    opportunity to be heard at a meaningful time and in a meaningful manner.’” In
    re K.D., 
    962 N.E.2d 1249
    , 1257 (quoting Mathews v. Eldridge, 
    424 U.S. 319
    , 333
    (1976)).
    [12]   A party’s constitutional claim is considered waived when it is raised for the first
    time on appeal. Hite v. Vanderburgh Cnty. Office of Family and Children, 
    845 N.E.2d 175
    , 180 (Ind. Ct. App. 2006). Our review of the record reveals that
    Mother never objected to the combined hearings based on a due process
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 6 of 16
    argument; instead, she explicitly consented to it. When the trial court suggested
    a combined permanency and custody hearing, Mother’s counsel responded:
    “And I guess it seems to me that all of the evidence we have to present towards
    whether that permanency plan should be entered or not, would also be the
    evidence as far as a custody determination.” Tr. p. 39. When the trial court
    again asked, “So keep it all together?”, Mother’s counsel did not object. 
    Id. at 39-40.
    Thus, Mother’s argument regarding the effect of the combined hearing
    on her due process rights is waived on appeal.
    [13]   Waiver notwithstanding, Mother’s assertion that the combined hearing
    deprived her of due process lacks merit. She provides no authority to support
    her contention that the court’s decision to combine the permanency and
    custody hearings was an error or that it created a high risk of error. See McBride
    v. Monroe Cnty. Office of Family and Children, 
    798 N.E.2d 185
    , 197 (Ind. Ct. App.
    2003) (finding no error when the court conducted a review hearing and a
    permanency hearing at the same time when the appellant provided no authority
    to support her contention that the simultaneous hearings denied her due
    process). Mother concedes “that the trial court had the authority to
    simultaneously exercise jurisdiction over both matters.” Appellant’s Br. p. 8.
    See also Ind. Code § 31-30-1-12(a) (a court with jurisdiction over a child custody
    or parenting time proceeding in a marriage dissolution “has concurrent original
    jurisdiction with the juvenile court for the purpose of modifying custody of a
    child who is under the jurisdiction of the juvenile court because the child is the
    subject of a child in need of services proceeding”). Moreover, Mother was
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 7 of 16
    present and had counsel who represented her during the proceeding. Mother
    testified and, through counsel, cross-examined DCS’s and Father’s witnesses.
    We find, therefore, that Mother had the opportunity to be heard at a
    meaningful time and in a meaningful manner. We decline to reverse based on
    the trial court’s decision to hold the combined hearing.
    II. Parenting Time                   2
    [14]   Mother also argues that the trial court erred when it restricted her parenting
    time and that it failed to make specific findings to support the restrictions.
    [15]   A decision about parenting time requires us to give foremost consideration to
    the best interests of the child. Perkinson v. Perkinson, 
    989 N.E.2d 758
    , 761 (Ind.
    2013). We will uphold a parenting time decision if the record reveals a rational
    basis for the trial court’s determination. Meisberger v. Bishop, 
    15 N.E.3d 653
    , 656
    (Ind. Ct. App. 2014). Indiana recognizes that a noncustodial parent’s right of
    visitation with his or her own children is a “‘precious privilege’” and that the
    “noncustodial parent is ‘generally entitled to reasonable visitation rights.’”
    
    Perkinson, 989 N.E.2d at 762
    (quoting Duncan v. Duncan, 
    843 N.E.2d 966
    , 969
    (Ind. Ct. App. 2006)). Indiana Code section 31-17-4-1 provides that “[a] parent
    not granted custody of the child is entitled to reasonable parenting time rights
    unless the court finds, after a hearing, that parenting time by the noncustodial
    2
    We infer that Mother is appealing this order under the dissolution of marriage proceeding, not under the
    CHINS proceeding, which has been closed.
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016          Page 8 of 16
    parent might endanger the child’s physical health or significantly impair the
    child's emotional development.” The trial court must make specific findings to
    support its parenting time order. 
    Perkinson, 989 N.E.2d at 765
    . The party
    seeking “to restrict parenting time rights bears the burden of presenting
    evidence justifying such a restriction by the preponderance of the evidence.” 
    Id. (internal quotation
    marks and citation omitted).
    [16]   In the custody order, the trial court found that:
     Father successfully completed services with the Fatherhood Engagement
    program and a substance use assessment with no needs identified;
     Father demonstrated stability in his housing and employment and
    created a childcare plan for V.K. while he is working;
     Father demonstrated a child-focused lifestyle and a commitment to co-
    parenting;
     Father demonstrated that he can provide a safe, stable, and loving home
    to V.K.;
     Mother failed to complete a mental health assessment;
     Service providers observed that Mother has unrealistic views about
    V.K.’s development; difficulty regulating her emotions such that she can
    become so emotionally upset that she is distracted from parenting her
    child; and difficulty in understanding and processing information as
    evidenced by excessive voicemails left by Mother in which she continues
    to ask questions to previously answered questions; and
     Father has concerns about Mother’s judgment as it relates to V.K.’s well-
    being because prior to DCS involvement, during parenting time granted
    by a provisional order in the dissolution of marriage action, Mother
    stopped giving V.K. medication for MRSA and tried to physically
    squeeze the MRSA out, resulting in V.K. being hospitalized.
    App. p. 7-9.
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 9 of 16
    [17]   Mother contends that “it is not clear what standard the trial court applied in
    restricting Mother’s parenting time.” Appellant’s Br. p. 8. She also contends
    that the trial court failed to make specific findings to support the restriction, and
    that it erred when it did not specifically identify the standard set forth in
    Indiana Code section 31-17-4-1 and when it did not make specific findings that
    parenting time would endanger V.K.’s physical or mental health. The standard
    for denying or restricting parenting time “‘requires evidence establishing that
    visitation ‘would’ (not ‘might’) endanger or impair the physical or mental
    health of the child.’” 
    Perkinson, 989 N.E.2d at 763
    (quoting Stewart v. Stewart,
    
    521 N.E.2d 956
    , 960 n.3 (Ind. Ct. App. 1988)).
    [18]   We find that the trial court did identify the appropriate standard when it stated
    the following in the permanency order:
    20. The court finds that is [sic] shall be in the child’s best interest
    that custody be awarded to [Father].
    21. The Court finds by clear and convincing evidence that the
    best interests of the child, [V.K.], is substantially served by
    granting [Father] sole legal custody and primary physical custody
    of [V.K.]
    [19]   App. p. 8-9. Further, it is apparent to us that the trial court applied the
    appropriate standard when restricting Mother’s parenting time, as evidenced by
    its stated concerns about Mother’s mental health, unwillingness to complete a
    mental health evaluation, inability to regulate her emotions, and decision to
    quit giving V.K. necessary medication, which resulted in V.K.’s hospitalization.
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 10 of 16
    These findings indicate that the trial court was concerned that time spent with
    Mother would endanger or impair V.K.’s physical or mental health.
    [20]   Mother further contends that the combined hearing resulted in DCS, rather
    than Father, proving that Mother’s parenting time should be restricted. We
    disagree. Father testified, was cross-examined, and served as a rebuttal witness
    during the hearing, providing his own evidence that, in addition to the evidence
    presented by DCS, allowed the trial court to come to its determination.
    Specifically, he testified about his concerns about Mother’s treatment of V.K.
    when V.K. had MRSA, Mother’s unrealistic views of what is age appropriate
    for a child, an occurrence of alleged domestic violence that took place while
    V.K. was visiting Mother, and Mother’s inappropriate behavior that resulted in
    a few visits being cut short, including one that involved the police. Further, we
    note that Father presented two voicemails left by Mother to Father as examples
    of Mother’s inability to conduct herself civilly and apparent unwillingness to co-
    parent:
    “Your [sic] not letting me talk to my daughter, to my daughter
    [sic]. I don’t have to go through [Family Case Manager] to do it.
    Okay. I don’t make a kid with [Family Case Manager], I made a
    kid with you unfortunately. It’s not on paper, you don’t have
    anything on paper. Okay, and whatever you have that’s hearsay,
    because that’s hearsay. You don’t have anything up to par, okay,
    and I’m also stated that in Indiana, in the State of Indiana, under
    the Indiana guidelines, I have different rights to talk to my child.
    I looked it up online, so I know what I’m talking about, and since
    you’re not letting me talk to my daughter, I don’t have to go
    through [Family Case Manager]. Okay, I didn’t make a kid with
    [Family Case Manager], I made a kid with you unfortunately,
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 11 of 16
    and you wanna act like a f**kin’ d**k-wad? And I can be the
    biggest f**kin b***h you’ve ever met and I’m not joking, You
    don’t wanna let me be around my child? Well (inaudible), but
    you have? That’s fine, but you know what? I’m stronger now,
    and I’m a lot better now than I ever was before and you are not
    going to break me, [Father].”
    “I really don’t have anything to say to you, I just wanted to talk
    to my daughter, okay. And since you wanna be so f**kin’ selfish
    and keep her all to yourself, on Thursday, I have every bit of
    right to her, just as much as you do, and I’m not talking to you,
    because all [I] have is lies, and I’m tired of it. I have (inaudible)
    to you, and I have nothing more to say to you. Go be happy
    with your f**king n*****, I really don’t give a f**k. But she’s not
    gonna be around my child. . . .”
    Tr. p. 150-52. We find that Father’s evidence alone would have been sufficient
    to show by a preponderance of the evidence that Mother’s parenting time
    restriction is warranted. The evidence presented by DCS merely corroborated
    Father’s evidence. In sum, we find the evidence sufficient to support the trial
    court’s restriction of Mother’s parenting time.
    IV. Closure of CHINS Case
    [21]   Finally, Mother argues that DCS prematurely terminated services when it
    closed the CHINS case on February 19, 2016, and that the termination
    “resulted in the denial of due process.” Appellant’s Br. at 11. She argues that
    no impending deadlines or ongoing permanency concerns necessitated the
    termination of services to Mother at that time because the trial court recognized
    that a permanency hearing was not required until May 2016.
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 12 of 16
    [22]   The purpose of a CHINS adjudication is to protect children, not punish parents.
    In re N.E., 
    919 N.E.2d 102
    , 106 (Ind. 2010). The “policy and purpose of the
    CHINS statutory scheme is not to remove children from their parents without
    giving the parents a reasonable opportunity to participate.” In re J.B., --- N.E.3d
    ---, No. 20A05—1510—JC—1612, 
    2016 WL 4728565
    , at *4 (Ind. Ct. App.
    2016). The CHINS adjudication does not establish culpability on the part of a
    particular parent. In re 
    N.E., 919 N.E.2d at 105
    . Because a CHINS
    determination establishes the status of a child alone, a separate analysis as to
    each parent is not required in the CHINS determination stage. 
    Id. at 106.
    The
    resolution of a juvenile proceeding focuses on the best interests of the child. 
    Id. “When the
    juvenile court finds that the objectives of the dispositional decree
    have been met, the court shall discharge the child and the child’s parent,
    guardian, or custodian.” Ind. Code § 31-34-21-11.
    [23]   On May 28, 2015, Mother was referred for home based case management to
    address any necessary parenting education that may have needed to be
    completed; Mother did not commit to participating in the program. On
    November 2, 2015, Mother was referred for home based therapy and at the time
    of the January 14, 2016, hearing, she had only participated in two therapy
    sessions. On September 14, 2015, she completed a substance abuse assessment
    and was not recommended for any additional services; however, the provider
    indicated that Mother could benefit from mental health services in order to help
    develop positive coping skills. On October 2, 2015, Mother’s family case
    manager referred Mother for psychological services. Mother was scheduled for
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 13 of 16
    an evaluation on November 6, 2015, but she cancelled that appointment and
    refused to reschedule due to the provider’s distance from her. Mother’s family
    case manager then referred Mother to a provider closer to Mother, and an
    evaluation was scheduled for December 22, 2015. Mother declined to attend,
    saying that she did not have transportation. Mother’s family case manager
    advised Mother that Mother’s therapist could transport her to her appointment
    if transportation was a barrier. Mother also reported to her family case
    manager that she was not willing to do that evaluation at times.
    [24]   Given these facts, we strongly disagree with Mother’s assertion that “[t]his was
    not a circumstance in which Mother blatantly and repeatedly refused to
    participate in services” but instead was “a situation where DCS required the
    service, did not offer it, and then cited Mother’s failure to undergo the
    evaluation as a reason why Father should be awarded custody and Mother’s
    parenting time should be restricted.” Appellant’s Br. p. 11. At the October 29,
    2015, review hearing, the trial court noted that Mother “has fluctuated as to her
    willingness to participate” in a mental health evaluation and that Mother “has
    questioned the need despite the treatment team seeing significant mental health
    needs.” App. p. 31. Mother received numerous opportunities long before the
    February 19, 2016, hearing, to participate in the services, and the record is clear
    that Mother’s family case manager was responsive to her concerns about the
    location of the services and transportation and made appropriate referrals and
    suggestions to overcome those obstacles.
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 14 of 16
    [25]   Thus, over the course of nine months, Mother had a reasonable opportunity to
    participate in all court-ordered services. She failed to do so. She cannot now
    credibly complain that she did not have a chance. Compare with In re J.B.
    (reversing the part of the CHINS court’s order that discharged the parties and
    terminated the CHINS case because the parents did not have a reasonable
    opportunity to participate in the CHINS adjudication when the trial court
    granted DCS’s request to close the CHINS case, with the CHINS finding intact,
    before a dispositional decree was entered and before Mother could participate
    in services). We find no error on the part of DCS, nor do we find that the
    termination of services resulted in any deprivation of due process rights
    because, as discussed above, Mother had the opportunity to be heard at a
    meaningful time and in a meaningful manner.
    [26]   Moreover, Father complied with the trial court’s orders. The trial court found
    that Father demonstrated stability in his housing and employment, that Father
    created a strong plan of care of his daughter while he is working, and that
    Father showed a child-focused lifestyle and a commitment to co-parenting. In
    short, the trial court found that Father demonstrated that he can provide a safe,
    stable, and loving home to V.K. Under these circumstances, the trial court is
    required to close the CHINS case. See Ind. Code § 31-34-21-11. Therefore,
    regardless of Mother’s shortcomings, the trial court did not err in finding that
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 15 of 16
    the objectives of the dispositional decree were met and in discharging the
    CHINS case.3
    [27]   The judgment of the trial court is affirmed.
    Vaidik, C.J., and Najam, J., concur.
    3
    In Mother’s final argument, she complains that the trial court’s order severely limited the amount of time
    she and V.K. could spend together and prevents them from spending any holidays together. We note that,
    pursuant to the child custody modification statutes, Mother is free to petition the court to modify the custody
    order in the dissolution case.
    Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016            Page 16 of 16