In re the Matter of A.M. (Minor Child), Child in Need of Services, and J.M. (Mother) and D.M. (Father) v. The Indiana Department of Child Services (mem. dec.) , 121 N.E.3d 556 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be Mar 15 2019, 10:45 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT J.M. ATTORNEYS FOR APPELLEE
Jason Meredith Curtis T. Hill, Jr.
Monroe County Public Defender’s Office Attorney General
Bloomington, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT D.M. Deputy Attorney General
Indianapolis, Indiana
Amy P. Payne
Monroe County Public Defender’s Office
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Matter of A.M. (Minor March 15, 2019
Child), Child in Need of Court of Appeals Case No.
Services, and 18A-JC-2330
J.M. (Mother) and D.M. Appeal from the Monroe Circuit
(Father), Court
The Honorable E. Michael Hoff,
Appellants-Respondents,
Special Judge
v. Trial Court Cause No.
53C06-1708-JC-634
The Indiana Department of
Child Services,
Appellee-Petitioner
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Crone, Judge.
Case Summary
[1] J.M. (“Mother”) and D.M. (“Father”) (collectively “Parents”) appeal the
adjudication designating their daughter A.M. (“Child”) a child in need of
services (“CHINS”). They challenge the trial court’s admission of Child’s
forensic interview on hearsay grounds and assert that the evidence is
insufficient to support the CHINS determination. We affirm.
Facts and Procedural History
[2] Parents are the biological parents of Child, born October 12, 2012. Child spent
a portion of her first three years in relative care with B.S. due to a previous
CHINS adjudication. Mother completed services, and the CHINS case was
closed. When Child was four, she lived with Parents at their apartment and
slept in the same bed with them.
[3] In August 2017, the Indiana Department of Child Services (“DCS”) received a
report that Child had accused Father of molesting her. DCS family case
manager (“FCM”) Catherine Hall went to Parents’ apartment, accompanied by
police. FCM Hall had a private conversation with Mother, while officers
remained with Father and Child. According to FCM Hall, Mother did not
believe Child’s allegations against Father. The officers apprised Father of the
allegations, and although he denied them, he packed a suitcase and left.
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[4] That same day, Child was taken to Susie’s Place child advocacy center, where
she underwent a forensic interview. During the interview, she disclosed that
Father had touched her breasts, vagina, and buttocks while she was in bed with
him and Mother. FCM Hall, a police detective, and a victim advocate observed
a live feed of the interview from another room. FCM Hall subsequently had a
meeting with Parents, and Mother reiterated that she disbelieved Child’s
allegations. FCM Hall later testified concerning her conversations with
Mother,
[W]e have some serious safety concerns if you do not believe
your daughter. How can you keep your daughter safe if you do
not believe her? Um, she’s disclosing that her father did this and
then, of course, I went through the whole of reasons of why, ah,
based upon her previous history with us that she had been
previously ruled as the one parent who needed help and
assistance. That [Father] was the more stable parent and now he
was leaving the home, she was left to do this, and then she didn’t
believe her daughter. At that point, we no longer felt that she
could keep this child safe. So the child was removed from both
their cares.
Tr. Vol. 1 at 41-42. Child was placed with B.S., who had previously adopted
two of Child’s older siblings.
[5] DCS filed a petition seeking to have Child designated a CHINS. The CHINS
allegations included child molesting by Father, Mother’s presence during the
alleged molestations, and Mother’s neglect/disbelief of Child’s allegations.
Father was legally prohibited from visiting Child due to a protective order.
Child initially had therapeutic supervised visits with Mother. The visits
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temporarily ceased, but Mother filed a motion to reinstate, which the trial court
granted. Mother’s therapeutic supervised visits are once a week for
approximately two hours.
[6] DCS sought and was granted a child hearsay hearing, seeking to introduce at
the factfinding hearing the abuse disclosures that Child had made during her
forensic interview. After the child hearsay hearing, the trial court concluded
that Child’s statements bore sufficient indications of reliability and that Child
was unavailable to testify at the factfinding hearing. At the factfinding hearing,
the trial court took judicial notice of other DCS orders involving Parents.
These include four previous termination orders (two voluntary and two
involuntary) concerning Mother’s older children and one previous termination
order involving Father.1
[7] The trial court adjudicated Child a CHINS. In an order with findings of fact
and conclusions thereon, the court continued Child in her relative placement.
Parents now appeal. Additional facts will be provided as necessary.
1
Those termination orders are not included in the record before us.
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Discussion and Decision
Section 1 – The trial court acted within its discretion in
admitting Child’s hearsay statements.
[8] Parents challenge the admission of Child’s hearsay statements alleging that
Father molested her. The admission of evidence is a matter entrusted to the
trial court’s sound discretion. In re S.L.H.S., 885 N.E.2d 603, 614 (Ind. Ct.
App. 2008). We will reverse an evidentiary ruling only on a showing of an
abuse of discretion, meaning that the trial court’s decision is against the logic
and effect of the facts and circumstances before it. Id. “The fact that evidence
was erroneously admitted does not automatically require reversal, and we will
reverse only if we conclude the admission affected a party’s substantial rights.”
In re A.J., 877 N.E.2d 805, 813 (Ind. Ct. App. 2007), trans. denied (2008).
[9] Our General Assembly has enacted legislation geared specifically to the use of a
child’s hearsay statements in CHINS proceedings.2 Indiana Code Section 31-
34-13-2 provides that a statement or videotape made by a child under age
fourteen is admissible as evidence in a CHINS proceeding if certain
requirements are met. Indiana Code Section 31-34-13-3, known as the Child
Hearsay statute, lists those requirements, reading in pertinent part,
2
Parents cite the protected persons statute, Indiana Code Section 35-37-4-6, as instructive in ascertaining
whether Child’s statements are reliable. “The protected persons statute applies to criminal proceedings where
the introduction of statements by child victims is at issue. A CHINS proceeding is civil in nature, and thus
the protected persons statute is not applicable[.]” In re J.Q., 836 N.E.2d 961, 964 n.1 (Ind. Ct. App. 2005).
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A statement or videotape described in section 2 of this chapter is
admissible in evidence in an action to determine whether a child
… is a child in need of services if, after notice to the parties of a
hearing and of their right to be present:
(1) the court finds that the time, content, and circumstances of
the statement or videotape and any other evidence provide
sufficient indications of reliability; and
(2) the child:
….
(C) is found by the court to be unavailable as a witness because:
(i) a psychiatrist, physician, or psychologist has certified that the
child’s participation in the proceeding creates a substantial
likelihood of emotional or mental harm to the child; [or]
….
(iii) the court has determined that the child is incapable of
understanding the nature and obligation of an oath.
[10] With respect to the “time, content, and circumstances” of Child’s hearsay
statements, Parents appear to limit their argument to the reliability of the
content. That said, we note that Child underwent her forensic interview the
same day that her allegations were reported to DCS and that the interview was
conducted in a neutral setting, using nonleading questions. Parents claim that
Child’s inability to recall when or how often she was molested renders her
hearsay statements unreliable. We disagree. Although Child could not recall
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when the incidents began and ended, she disclosed that she was molested more
than once, and forensic interviewer Kelly Hunkler explained that Child’s
inability to pinpoint the timeframe or frequency of the alleged molestations was
typical for a four-year-old. See Tr. Vol. 1 at 60 (testimony that “a four year old
can typically tell you the who, the what, and the where, but they’re not so good
at sequence or when.”). When asked if there was “anything atypical about the
way [Child’s] interview went,” Hunkler responded, “No.” Id. at 61.
[11] Parents also point to the lack of specificity of some of Child’s responses. For
example, Child did not use clinical or mature terms for body parts. However,
she could identify body parts that Father had allegedly touched. Similarly,
Child did not specify whether the fondling took place over or underneath her
pajamas. However, she did disclose that she never wore a pajama top or
underwear to bed and that she sometimes woke up without her pajama
bottoms. Parents both corroborated the information concerning Child’s
nighttime attire and the fact that she slept in their bed with them.
[12] Parents also contend that Child’s statements were unreliable because she could
not tell the difference between the truth and a lie. Hunkler testified as to this
issue in part,
When I spoke with [Child] I asked her that if we could agree to
only talk about things that were real and that really happened, so
that’s things that she experienced, um, that she heard with her
ears, saw with her eyes, tasted with her mouth, smelled with her
nose or felt with her body and that I asked her, um, we could
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agree to only talk about things that really happened and she
agreed.
Id. at 59. Hunkler further explained that Child’s statements were consistent
throughout the interview, though not particularly detailed, which is typical for a
child her age. Id. at 60-61.
[13] With respect to reliability, Parents also focus on information provided by
psychologist Dr. Julia Gadlage, who conducted a clinical assessment and
testified at the child hearsay hearing. Dr. Gadlage was specifically tasked with
ascertaining whether Child would be deemed unavailable to testify at the
upcoming factfinding hearing. Parents do not challenge the issue of Child’s
unavailability pursuant to the statute, but they cite the doctor’s findings as they
relate to the issue of reliability. In her written report, Dr. Gadlage explained
that Child did “not have the ability to understand the nature and obligation of
an oath.” DCS Ex. A at 11. At the child hearsay hearing, she testified that
when she questioned Child concerning Father or any past abuse, Child either
ignored her completely or said, “I don’t know.” Tr. Vol. 1 at 77. She described
Child as emotionally unstable and fragile, with trauma symptoms resembling
post-traumatic stress disorder. Id. at 78-79. She expressed concern that Child
could not verbalize the difference between the truth and a lie but found that
Child could “describe prior things that have happened to her.” Id. at 91.
[14] Parents essentially contend that Child’s lack of understanding of certain terms
makes her reliability impossible to discern, even for professionals. We disagree.
Parents’ argument is tethered to semantics, that is, whether Child can apply
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terms such as oath, truth, and lie, without regard to her tender age. We find
such an application to be rigid and unpersuasive. The information provided by
Hunkler and Dr. Gadlage shows Child’s statements to be sufficiently reliable for
a four-year-old child. As such, we find no abuse of discretion in the admission
of Child’s hearsay statements.
Section 2 – The evidence is sufficient to support the CHINS
determination.
[15] Parents also challenge the sufficiency of the evidence to support the CHINS
determination. When reviewing the sufficiency of evidence, we give due regard
to the trial court’s ability to assess the credibility of witnesses. In re Des.B., 2
N.E.3d 828, 836 (Ind. Ct. App. 2014). We neither reweigh evidence nor judge
witness credibility; rather, we consider only the evidence and reasonable
inferences most favorable to the trial court’s decision. In re K.D., 962 N.E.2d
1249, 1253 (Ind. 2012). Where the trial court issues findings of fact and
conclusions thereon, we apply a two-tiered standard of review. In re R.P., 949
N.E.2d 395, 400 (Ind. Ct. App. 2011). We consider first whether the evidence
supports the findings and then whether the findings support the judgment. Id.
We will set aside the trial court’s findings and conclusions only if they are
clearly erroneous and a review of the record leaves us firmly convinced that a
mistake has been made. Id. Appellate courts generally grant latitude and
deference to trial courts in family law matters. Matter of E.K., 83 N.E.3d 1256,
1260 (Ind. Ct. App. 2017), trans. denied (2018). This deference recognizes the
trial court’s “unique ability to see the witnesses, observe their demeanor, and
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scrutinize their testimony, as opposed to this court’s only being able to review a
cold transcript of the record.” Id.
[16] In a CHINS proceeding, DCS bears the burden of proving by a preponderance
of the evidence that a child meets the statutory definition of a CHINS. In re
N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing
CHINS status, DCS must prove that the child is under age eighteen,
(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.
Ind. Code § 31-34-1-1.
[17] Although the acts or omissions of one or both parents can cause a condition
that creates the need for court intervention, the CHINS designation focuses on
the condition of the children rather than on an act or omission of the parent(s).
N.E., 919 N.E.2d at 105. In other words, despite a “certain implication of
parental fault in many CHINS adjudications, the truth of the matter is that a
CHINS adjudication is simply that – a determination that a child is in need of
services.” Id. (citations omitted).
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[18] Parents do not specifically challenge any of the court’s findings. As such, we
simply determine whether the unchallenged findings are sufficient to support
the judgment. T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct.
App. 2012), trans. denied. The unchallenged findings include the following:3
2. On or about August 6, 2017, Child disclosed that she had
been sexually molested when Father fondled her in Parents’ bed,
where Mother, Father and Child were sleeping. During the DCS
investigation of the allegations the Mother informed the DCS
that she did not believe that Father had fondled Child. The DCS
concluded that Child was unsafe in Parents’ home as Father had
molested her, and Mother was unlikely to protect Child since
Mother did not believe the child abuse had happened.
3. Child was removed from Parents[’] home on August 6, 2017,
and placed in a kinship placement in the home of B.S. Child has
resided continuously in the home of B.S. since her removal from
Parents’ home. Also residing in that home are [two of] Child’s
half siblings, …. the biological children of Mother.
4. Mother previously voluntarily terminated her parental rights
to two of her children. In December, 2009, the parental rights of
Mother as to two other children who were biological siblings of
Child were involuntarily terminated.
5. The parental rights of Father as to one child who was a
biological sibling of Child w[ere] involuntarily terminated.
6. Child’s care was the subject of an open DCS case in Monroe
County from 2012 through 2016. The case was closed after
3
The findings include proper names. We refer to the relevant persons as previously designated.
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Mother successfully complied with the steps required of her by
the DCS.
7. The Court previously found in the June 11, 2018 Order
Finding Child to be in Need of Services that the CHINS petition
had been proven by the greater weight of the evidence; that
Father had sexually molested Child as set out in the CHINS
petition; that Mother does not believe that the illegal fondling of
Child by Father occurred; and Mother is in a poor position to
protect Child from further harm. The Court further found that
because Mother does not believe Child’s report of Father
fondling her, Mother is unwilling or unable to keep Child safe.
She is not capable of caring for Child without assistance. The
Court reaffirms those findings.
8. Child needs a safe home environment that cannot be provided
by Parents. She should remain in the current foster home
placement with B.S. She needs appropriate outpatient treatment
from an individual mental health practitioner. She requires
supervised visitation with Mother and transportation to and from
that visitation. She should not have contact with Father unless
and until it is recommended by the family team, and then any
contact should be supervised. The Court notes that there is at
this time a protective order entered in a criminal case that
prohibits Father from having any contact with Child.
9. Because of the emergency nature of Child’s situation in
Parents’ home, the DCS was unable to provide services as an
alternative to the immediate removal of Child from Parents’
home.
10. As stated in the DCS Summary of DCS Recommendations
in its Predispositional Report, both parents have had extensive
services provided to them. Because both parents have previously
had their parental rights to other children who are biological
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siblings of Child involuntarily terminated the DCS is not required
to make reasonable efforts to reunify Child with Parents, or to
preserve the family.
11. It is not clear what the relationship between Parents is now.
They were residing as a married couple. When Child was
removed from their home Father voluntarily moved out.
However there is evidence that they continue to meet and spend
time together (as they have a right to do). Mother appears to
want to continue her marital relationship as it was before Child
was removed. Father did not testify, so his intention is not
known. Keeping Child safe in a home with both her parents
would be difficult and hard to assure for the reasons set out
herein; Father molested her and Mother doesn’t believe it.
12. Child has been out of Parents’ home for four years, and she
is only five years old. She needs stability and to know where her
home is, a point emphasized by the CASA. She should not live
in Parents’ home. Some of the deficiencies in the foster home,
such as cleanliness and clutter, could be improved on, but Child
should remain in that home so long as it is an option for
adoption/long term placement.
Appealed Order at 1-3.
[19] These unchallenged findings stand as proven and are sufficient to support the
CHINS determination. Sadly, Mother’s connection with Father and desire to
work on the marital relationship, combined with her skepticism concerning
Child’s allegations against Father, underscore the need for the court’s coercive
intervention to protect Child from physical and emotional danger. We find no
error here. Consequently, we affirm.
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[20] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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