In the Matter of L.B., I.B., O.B., and L.S., Minor Children Alleged to be Children In Need of Services D.B. (Mother) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 30 2019, 10:53 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Danielle Sheff Curtis T. Hill, Jr.
Sheff Law Office Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of L.B., I.B., O.B., September 30, 2019
and L.S., Minor Children Court of Appeals Case No.
Alleged to be Children In Need 19A-JC-681
of Services; Appeal from the Marion Superior
D.B. (Mother), Court
The Honorable Marilyn A.
Appellant-Respondent,
Moores, Judge
v. The Honorable Gael S. Deppert,
Magistrate
Indiana Department of Child Trial Court Cause Nos.
Services, 49D09-1811-JC-2747
49D09-1811-JC-2748
Appellee-Petitioner, 49D09-1811-JC-2749
49D09-1811-JC-2750
and
Child Advocates, Inc.,
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Appellee-Guardian ad Litem.
Najam, Judge.
Statement of the Case
[1] D.B. (“Mother”) appeals the trial court’s adjudication of her minor children
L.B., I.B., O.B., and L.S. (collectively “Children”), as children in need of
services (“CHINS”). Mother presents several issues for our review, which we
consolidate and restate as the following three issues:
1. Whether the Indiana Department of Child Services
(“DCS”) presented sufficient evidence to support the trial
court’s adjudication of Children as CHINS.
2. Whether the trial court clearly erred when it ordered
Mother to participate in certain services pursuant to the
parental participation order.
3. Whether the trial court has jurisdiction over L.S. given his
possible Native American heritage.
[2] We affirm.
Facts and Procedural History
[3] Mother is the mother of L.B., born May 16, 2008; I.B., born September 21,
2009; O.B., born May 15, 2011; and L.S., born March 28, 2016. R.B. is the
father of L.B. and O.B.; R.A.B. is the father of I.B.; and C.S. is the father of
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L.S. Mother and C.S. have been in a romantic relationship for several years,
and there have been multiple instances of domestic violence between them. In
August and October 2018, “law enforcement responded to three (3)
disturbances between [Mother] and [C.S.] that occurred with children present.”
Appellant’s App. Vol. 3 at 111. In addition, on October 4, 2018, “a fourth
disturbance . . . occurred where [Mother] reported [C.S.] held her against her
will for fourteen (14) hours, threatened to kill her if she contacted police,
assaulted her and then prevented her and [L.S.] from leaving the scene.” Id.
Accordingly, on October 5, Mother filed a petition for an order of protection
against C.S., which the trial court granted.
[4] On October 22, at 2:55 a.m., C.S. “banged” on the door of Mother’s home, and
on October 29, Mother filed a petition for contempt against C.S. Id. at 112.
The State subsequently charged C.S. with invasion of privacy for violating the
order of protection. However, on November 5, Mother moved the trial court to
dismiss the order of protection, which the trial court did.
[5] Due to the domestic violence between Mother and C.S. in the presence of
Children, on November 9, DCS filed petitions alleging that Children were
CHINS, and the trial court removed Children from Mother’s care. On January
2, 3, and 4, 2019, and on February 27, the trial court held fact-finding hearings
and a dispositional hearing. The court determined Children to be CHINS and
found and concluded in part as follows:
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10. [Mother] was earlier involved with DCS in 2003 or 2004,
involving three (3) older children, two of whom she signed
voluntary consents to adopt.
***
22. On 10/5/18, Indianapolis Metropolitan Police Department
(IMPD) Officer Hibschman responded to a disturbance, close to
midnight, where he saw [Mother] outside in her driveway by her
vehicle, visibly upset, because her child’s father, [C.S.], came
over to argue with her. [Mother] told the officer that their son
([L.S.]) was present the night I was called there (on 10/5/18),
and that [C.S.] left [Mother’s] residence before IMPD arrived.
23. [Mother] also told Officer Hibschman that the day before, on
10/4/18, [C.S.] came to her home about 9:00 a.m, and held her
hostage for fourteen (14) hours, leaving about 11:00 p.m. He
would not let her call the police, or he would kill her. [Mother]
then left for the hospital for injuries she said [C.S.] caused her
when he assaulted her sometime during 10/4/18. After she left
for the hospital, [C.S.] called [Mother] and told her he was
returning to [Mother’s] residence to get his son [L.S.], which
caused [Mother] to interrupt her drive to the hospital and return
to her residence for her son. Mother reported to Officer
Hibschman that [C.S.] subsequently blocked her vehicle so that
[Mother] could not leave with their son, [L.S.], who was buckled
in the car. [Mother] reported that [C.S.] pushed her into the door
jamb of the vehicle, causing her pain in addition to injuries
she received earlier from him. [C.S.] then left the scene, with her
extra set of car keys and house keys, before IMPD arrived.
[Mother] informed Officer Hibschman she intended to obtain a
protective order.
24. Officer Hibschman recalls that [Mother] told him the
children were present 10/4/18.
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25. Based on Officer Hibschman’s undisputed testimony, [the]
Court finds that on 10/4/18, [C.S.] held [Mother] hostage for
fourteen (14) hours, threatened her with death if she contacted
police, and caused her injuries and pain before he then prevented
her from leaving the scene with the child [L.S.] buckled in the
car that [Mother] was driving.
***
52. During this CHINS cause, above, and prior to fact-finding,
DCS referred [Mother and C.S.] to Families First for a domestic
violence assessment for each parent.
53. Families First counselor Stacey May assessed [C.S.] for
about two (2) hours on or about 11/13/18 pursuant to a DCS
referral through these CHINS causes. . . .
54. During the domestic violence assessment. . . [C.S.]
acknowledged his behavior and took accountability for his
actions where he slapped [Mother].
55. FCM permanency worker states that both [Mother and C.S.]
are in domestic violence classes through a DCS referral, which
classes are not completed.
56. [C.S.] informed the Guardian ad Litem that [C.S.] was upset
with the allegations in this CHINS cause . . . because the petition
omitted that [Mother] smacked him seven or eight times.
57. Testimony is conflicting regarding whether [C.S.] resides in
[Mother’s] home, or whether he only visits the home, to include
visits at late hours when [Mother] and [R.B.] communicate by
phone; [C.S.] states he moved out of [Mother’s] residence the
week prior to the fact-finding date of 1/2/19 because he is tired
of stuff and [Mother] would not let (him) see the kids.
***
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62. [Mother] is upset that these CHINS causes, above, have been
opened, as she contacted police because she and [C.S.] had an
argument and she was angry with [C.S.] [Mother] considers
herself being honest for calling the police where [Mother] was the
victim.
63. [Mother] has no recollection or memory of physical contact
or physical violence or no actual physical violence between her
and [C.S.]: [“]I call the police because I am mad at him.[”]
64. [Mother] has not acknowledged to [the] Guardian ad Litem
or the DCS FCM that domestic violence has occurred between
her and [C.S.]
65. [Mother and C.S.] assert that they argue.
66. [Mother] testified that she does not remember any physical
violence between her and [C.S.]: [“]We argue and that’s about
it.[”]
67. [Mother and C.S.] have discussed with the Guardian ad
Litem and other members of the Child Family Team that they
are working on their relationship and that they plan to live
together.
***
75. On 11/26/18, the children were placed in relative/kinship
care with aunt-in-law Judy Stedman.
76. On or about 12/28/18, relative care provider and maternal
aunt Judy Stedman requested immediate removal of the children,
above, from her care, on the basis of [Mother’s] harassing
conduct toward Ms. Stedman.
77. The children remain removed from the care and custody of
their parents at the time of the fact-finding.
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[The] Court finds [Mother and C.S.] unable, or unwilling, to
acknowledge ongoing domestic disturbances between themselves
that occur in the presence of [the C]hildren. . . . There have been
four (4) such disturbances in a period of two (2) months in
2018. . . . While [Mother] has called the police in three of the
four instances, and she has also sought protective orders against
[C.S.] since 2017, both of them continue to demonstrate
judgment that seriously endangers the physical or mental
condition of the children: Since 2017, [Mother] has successfully
petitioned for multiple orders for protection against [C.S.], each
of which she then sought to have dismissed, in periods of time
ranging from 24 hours to no more than thirty (30) days since the
issuance of the order. On 11/1/18, [C.S.] was criminally
charged with invasion of privacy for violating an order for
protection issued for [Mother], who sought to have that charge,
and protective order, lifted, which the criminal court granted on
11/20/18, some 11 days since the filing of these CHINS
allegations regarding domestic violence.
By [Mother’s] testimony, she and [L.B., I.B., and O.B.] need
therapy, in which they are each individually enrolled. Testimony
was vague regarding the start dates of these therapy sessions. . . .
Even if this judicial officer assumes the therapy sessions started a
month or two prior to these CHINS actions, above, there
remains significant concern about the willingness of [Mother and
C.S.] to persist with both the services parents would need to
address the impact upon their children of the domestic violence
they perpetrate in the presence of these children, and also
the therapy sessions in place for her and three of the children at
the time of the fact-finding. Both [Mother and C.S.] minimize or
deny the conflict and tension they create and in which these
children live, and learn, as these children hear and observe the
escalation and physical violence between [Mother and C.S.] on a
continuing basis. Given [C.S.’s] denial to the domestic violence
assessor, and given [Mother’s] repeated efforts to obtain and then
immediately withdraw her petitions for orders for protection, this
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judicial officer is concerned that both of these parents would not
voluntarily access domestic violence services to learn how to
reduce if not eliminate the serious endangerment they put these
children in by virtue of these parents’ inability to manage conflict
without resort to physical aggression in the presence of the
children. Given that [Mother and C.S.] have stated their intent
to be together, these children need these parents to complete
the domestic violence classes already underway. Based on
[C.S.’s] denial of any domestic disturbances, and on [Mother’s]
willingness to see dismissal of multiple orders for protection, this
judicial officer finds the completion of recommendations from
the domestic violence assessment unlike[ly] to be accepted by
[Mother and C.S.] without the coercive intervention of the court.
***
CONCLUSIONS OF LAW
1. [L.B., I.B., O.B., and L.S.] is each a child under the age
of 18 years.
2. The children’s physical or mental condition is seriously
impaired or endangered as a result of their parents’ inability,
refusal, and neglect to provide the children with a safe and stable
home environment, free from exposure to domestic violence, and
with adequate parental supervision and involvement.
3. The children need a safe and stable home environment, free
from exposure to domestic violence, and with adequate parental
supervision and involvement, which they are unlikely to receive
without the coercive intervention of the Court.
Based upon the Findings and Conclusion[s], the Court now
adjudicates the children to be Children In Need of
Services.
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Id. at 109-118. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[6] Mother first contends that there was insufficient evidence to sustain the trial
court’s determination that Children are CHINS. Our Supreme Court recently
reiterated our standard of review:
When reviewing a trial court’s CHINS determination, we do not
reweigh evidence or judge witness credibility. In re S.D., 2
N.E.3d 1283, 1286 (Ind. 2014). “Instead, we consider only the
evidence that supports the trial court’s decision and [the]
reasonable inferences drawn therefrom.” Id. at 1287 (citation,
brackets, and internal quotation marks omitted). When a trial
court supplements a CHINS judgment with findings of fact and
conclusions of law, we apply a two-tiered standard of review.
We consider, first, “whether the evidence supports the findings”
and, second, “whether the findings support the judgment.” Id.(citation omitted). We will reverse a CHINS determination only
if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253
(Ind. 2012). A decision is clearly erroneous if the record facts do
not support the findings or “if it applies the wrong legal standard
to properly found facts.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262
(Ind. 1997) (citation omitted).
Gr. J. v. Ind. Dep’t. of Child Servs. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind. 2017)
(alterations in original).
[7] DCS alleged that Children are CHINS pursuant to Indiana Code Section 31-34-
1-1 (2018), 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
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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. Our Supreme Court has
interpreted this provision to require “three basic elements: that the parent’s
actions or inactions have seriously endangered the child, that the child’s needs
are unmet, and (perhaps most critically) that those needs are unlikely to be met
without State coercion.” J.B. v. Ind. Dep’t. of Child. Serv. (In re S.D.), 2 N.E.3d
1283, 1287 (Ind. 2014).
[8] On appeal, Mother does not challenge any of the trial court’s findings of fact
that support the CHINS adjudication. Rather, she asserts generally that DCS’
evidence was “so infected with innuendo and inconsistent testimony that it
violates Due Process and Equal Protection and is patently insufficient to
support the CHINS adjudication.” Appellant’s Br. at 36. First, we reject
Mother’s characterization of the evidence. Second, Mother does not
demonstrate where in the record she preserved her Due Process and Equal
Protection claims for appellate review.
[9] Third, and significantly, none of the evidence Mother challenges is relevant to
any of the trial court’s findings of fact. For instance, Mother’s primary dispute
on appeal focuses on DCS’ “allegations of pervasive drug and alcohol use by
[Mother], bipolar disorder and schizophrenia” which, she alleges, were
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unsubstantiated. Appellant’s Br. at 37. But not one of the trial court’s findings
or conclusions rests on the evidence presented in support of those allegations.
Finally, Mother does not present cogent argument in support of her assertions
that her constitutional rights have been violated. And it is undisputed that
Mother “‘had the opportunity to be heard at a meaningful time and in a
meaningful manner’” in these proceedings, which is what due process requires.
See S.S. v. Ind. Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1257 (Ind.
2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
[10] In any event, DCS presented sufficient evidence to support the CHINS
adjudications. It is well settled that a child’s exposure to domestic violence can
support a CHINS adjudication under Indiana Code Section 31-34-1-1. See N.L.
v. Ind. Dep’t. of Child. Serv. (In re N.E.), 919 N.E.2d 102, 106 (Ind. 2010); see also
M.P. v. Ind. Dep’t. of Child. Serv. (In re D.P.), 72 N.E.3d 976, 984 (Ind. Ct. App.
2017) (“[A] single incident of domestic violence in a child’s presence may
support a CHINS finding, and [the violence] need not necessarily be
repetitive.”). Here, the trial court found, and Mother does not dispute, that
[Mother and C.S. are] unable, or unwilling, to acknowledge
ongoing domestic disturbances between themselves that occur in
the presence of [C]hildren. . . . There have been four (4) such
disturbances in a period of two (2) months in 2018, including one
report by [Mother] that included [C.S.] threatening to kill her if
she called the police, assaulting her during that 14[-]hour period
and causing both injury and pain to her, and then blocking her
car with [L.S.] in the car seat when she attempted to leave.
Appellant’s App. Vol. 3 at 115.
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[11] Mother’s contentions amount to a request that we reweigh the evidence, which
we cannot do. The findings support the trial court’s conclusions that the
Children’s physical or mental conditions are seriously impaired or endangered
as a result of Mother’s inability, refusal, and neglect to provide Children with a
safe and stable home environment, free from exposure to domestic violence,
and with adequate parental supervision and involvement and that Children
need a safe and stable home environment, which they are unlikely to receive
without the coercive intervention of the Court. We therefore hold that
sufficient evidence supports the trial court’s findings, and its findings support its
conclusions with respect to Indiana Code Section 31-34-1-1. We affirm the trial
court’s adjudication of Children as CHINS.
Issue Two: Dispositional Decree
[12] Mother next contends that the trial court erred when it “ordered [her] to
participate in services for which no evidence was presented at the CHINS
proceedings.” Appellant’s Br. at 45. In particular, Mother asserts that there
was no reason for the court to order her to participate in home-based services,
which appears to relate to mental-health treatment, or to submit to random
drug screens. We cannot agree.
[13] Indiana Code Section 31-34-20-3 provides in relevant part that, if the trial court
determines that a parent should participate in a program of care, treatment, or
rehabilitation for the child, the court may order the parent to obtain assistance
in fulfilling the obligations as a parent and to participate in a mental health or
addiction treatment program. This court has held that, although the trial court
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has “broad discretion in determining what programs and services in which a
parent is required to participate, the requirements must relate to some behavior
or circumstance that was revealed by the evidence.” M.C. v. Marion Cty. Dep’t of
Child Servs. (In re A.C.), 905 N.E.2d 456, 464 (Ind. Ct. App. 2009). Here, the
trial court ordered in relevant part that Mother was required to participate “in a
home-based case management program referred by the Family Case Manager
and follow all recommendations” and to “submit to random drug/alcohol
screens.” Appellant’s App. Vol. 4 at 35.
[14] First, on the issue of the home-based case management program, the trial court
explicitly stated at the dispositional hearing that it would not be required for
Mother unless indicated by the results of a psychological evaluation. Second,
the trial court ordered drug screens based on the family case manager’s
testimony that, during the initial CHINS investigation in November 2018,
Mother had reported substance abuse, and the court was concerned that her
substance abuse might be contributing to the cycle of domestic violence. The
court stated that if Mother tested negative, she would not have to undergo a
substance abuse assessment or treatment. We hold that the evidence supports
the trial court’s orders.
Issue Three: Indian Child Welfare Act
[15] Finally, Mother asks that we remand to the trial court to order DCS to
determine whether L.S. “might fall under the auspices of the Indian Child
Welfare Act.” Appellant’s Br. at 53. The Indian Child Welfare Act (“ICWA”)
was enacted “to protect the best interests of Indian children and to promote the
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stability and security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from their
families[.]” 25 U.S.C.A. § 1902. A party who seeks to invoke a provision of
the ICWA has the burden to show that the Act applies in the proceeding.
Thompson v. Elkhart Ofc. of Fam. and Child. (In re S.L.H.S.), 885 N.E.2d 603, 612
(Ind. Ct. App. 2008). Applicability of the ICWA depends on whether the
proceeding involves an “Indian child,” which is defined as “any unmarried
person who is under the age of eighteen and is either (a) a member of an Indian
tribe or (b) is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” 25 U.S.C. § 1903(4) (emphasis added).
[16] Here, Mother asserts that “[p]reliminary hearings in this matter . . . show that
the [trial court] was presented with information that [C.S.] might be eligible for
membership in the Cherokee Tribe[.]” Appellant’s Br. at 53. Indeed, DCS filed
a notice in compliance with the ICWA that a CHINS petition had been filed
and that someone had alleged that C.S. may be eligible to be a member of an
Indian tribe. However, Mother has not directed us to any evidence either that
C.S. is a member or is eligible for membership in an Indian tribe or that his
father is a member of a tribe. Without such evidence, Mother did not meet her
burden to show that the ICWA applies, and she has not persuaded us that
remand is necessary on this issue.
[17] Affirmed.
Bailey, J., and May, J., concur.
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