In the Matter of: A.H., Jb.H., and Je.H., Children in Need of Services, C.P. v. The Indiana Department of Child Services ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
v
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Jun 13 2014, 9:55 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN M. KOLBUS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ROBERT J. HENKE
CHRISTINA D. PACE
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF: A.H., Jb.H., and )
Je.H., CHILDREN IN NEED OF SERVICES, )
)
C.P., )
Appellant-Respondent, )
)
vs. ) No. 34A05-1401-JC-1
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES , )
Appellee-Petitioner. )
APPEAL FROM THE HOWARD CIRCUIT COURT
The Honorable Lynn Murray, Judge
Cause Nos. 34C01-1307-JC-200, 34C01-1307-JC-201, 34C01-1307-JC-202
June 13, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
A.H., Jb.H., and Je.H. (collectively the “Children”) are the children of Appellant-
Respondent C.P. (“Mother”) and C.H. (“Father”). Following their parents’ divorce, the
Children resided with Mother.1 On July 16, 2013, Appellee-Petitioner the Indiana
Department of Child Services (“DCS”) filed petitions alleging that the Children where
children in need of services (“CHINS”) after receiving reports of physical abuse by
Mother against the Children. The Children were removed from Mother’s home and
placed in Father’s home.
Following an evidentiary hearing, the juvenile court determined that the Children
are CHINS. The juvenile court subsequently conducted a dispositional hearing, after
which it continued the Children’s placement with Father and ordered certain services for
both the Children and Mother. On appeal, Mother contends that the evidence is
insufficient to sustain the juvenile court’s determination that the Children are CHINS.
Mother also contends that the dispositional order does not meet the requirements set forth
in Indiana Code section 31-34-19-6. We affirm.
1
Mother and Father are also the parents of an older child, An.H., who, due to allegations of
physical abuse by Mother, resided with Father at all times relevant to the instant appeal.
2
FACTS AND PROCEDURAL HISTORY
The Children are the children of Mother and Father. DCS became involved with
the Children and initiated CHINS proceedings after receiving reports of physical abuse
against the Children by Mother. Specifically, DCS received a report that on July 12,
2013, Mother punished Jb.H. for accidently hitting Je.H. with a book by lifting Jb.H. out
of a chair by the collar, placing her hands around his throat, pushing him against the wall
in his bedroom, and slamming him against the wall “about five times.” Appellee’s App.
pp. 18, 22, 26. Jb.H. reported having a headache for several hours after the incident.
Both A.H. and Je.H. reported that they witnessed the July 12, 2013 incident between
Mother and Jb.H. and described the incident in a manner consistent with the description
giving by Jb.H.
In addition, Jb.H. reported that Mother had pushed him to the ground three times
in the two weeks leading up the Children’s removal from Mother’s home, and that on at
least one of these occasions, Mother sat on Jb.H. until he could no longer breathe. Jb.H.
also reported “being hit with an open hand and slammed to the ground and that these
things have been happening off and on for a long time.” Appellee’s App. pp. 18, 22, 26.
A.H. also reported that she had also suffered physical abuse by Mother. A.H. indicated
that Mother had previously pulled her down to the floor by her hair and hit her on the
hand with a spatula until she bled. Je.H. also reported that Mother “hits” her “with an
open hand.” Appellee’s App. pp. 19, 23, 27.
A.H. additionally reported that she had witnessed Mother “punching, scratching
and fighting” with Father before Mother and Father’s divorce. Appellee’s App. pp. 19,
3
23, 27. A.H. disclosed that Mother “hits her current husband and that physical
altercations have occurred in front of the [C]hildren.” Appellee’s App. pp. 19, 23, 27.
Each of the Children expressed concern for their half-sister, E.P., and A.H. indicated that
she feels Mother is too rough with E.P.
On July 16, 2013, DCS filed verified petitions alleging that the Children and E.P.2
were CHINS. DCS amended its verified petitions on July 17, 2013. The juvenile court
conducted an evidentiary hearing on September 16, 2013, during which it heard evidence
relating to DCS’s allegation that the Children were CHINS. Following the conclusion of
the evidentiary hearing, the juvenile court determined that the Children were CHINS.
The juvenile court conducted a dispositional hearing on December 2, 2013, after which it
granted wardship of the Children to DCS, maintained the Children’s placement with
Father, and ordered Mother to participate in reunification services. Mother now appeals.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
Mother contends that DCS presented insufficient evidence to sustain the juvenile
court’s determination that the Children are CHINS. In raising this contention, Mother
claims that DCS presented insufficient evidence to prove both that the Children are
CHINS and that services are unlikely to be provided without coercive intervention. For
its part, DCS argues that Mother has waived this claim for appellate review because she
2
The juvenile court’s determination regarding E.P. is not at issue in this appeal.
4
has failed to include the transcript of the September 16, 2013 evidentiary hearing in the
record on appeal.
Indiana Code section 31-34-1-1 provides that a child is a CHINS 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.
Indiana Code section 31-34-1-2 provides that a child is a CHINS if before the child
becomes eighteen years of age:
(1) the child’s physical or mental health is seriously endangered due to
injury by the act or omission of the child’s parent, guardian, or custodian;
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.
With respect to CHINS determinations, the Indiana Supreme Court has held as
follows:
[a] CHINS proceeding is a civil action; thus, “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). We neither
reweigh the evidence nor judge the credibility of the witnesses. Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind.
1992). We consider only the evidence that supports the trial court’s
decision and reasonable inferences drawn therefrom. Id. We reverse only
upon a showing that the decision of the trial court was clearly erroneous.
Id.
5
In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). It is well-settled that “[i]t is the
appellant’s duty to insure that an adequate record is presented to this court for review of
the issues it raises.” Mid-West Fed. Sav. Bank a Div. of 1st Ind. Bank, a Fed. Sav. Bank v.
Epperson, 579 N.E.2d 124, 125 (Ind. Ct. App. 1991); see also Anderson v. Ind. State
Emps. Appeals Comm’n, 172 Ind. App. 529, 532, 360 N.E.2d 1040, 1042 (1977); Kerkhof
v. Dependable Delivery, Inc., 167 Ind. App. 248, 251, 338 N.E.2d 513, 516 (1975).
When an appellant fails to present an adequate record on appeal, “the appellant is deemed
to have waived any alleged error based upon missing material.” Adamson v. Norwest
Bank, NA, 609 N.E.2d 35, 37 (Ind. Ct. App. 1993).
DCS initiated the CHINS proceedings after receiving reports of physical abuse
against the Children by Mother. After an evidentiary hearing, the juvenile court
determined that DCS had presented sufficient evidence to prove by a preponderance of
the evidence that the Children are CHINS. Mother challenges this determination on
appeal. However, we are unable to review the sufficiency of the evidence to sustain the
trial court’s determination because Mother did not provide this court with a transcript of
the evidentiary hearing. Without the aid of the transcript of the evidentiary hearing, we
are unable to review the evidence presented by DCS or come to a determination about
whether said evidence was sufficient to sustain the trial court’s determination that the
Children are CHINS. As such, we conclude that Mother has waived this challenge on
appeal.3
3
Further, to the extent that Mother disputes the accuracy of the Children’s alleged testimony and
cites to the juvenile court’s decision to end the CHINS case regarding E.P. during the December 2, 2013
6
II. Dispositional Order
Mother also contends that the dispositional order does not meet the requirements
of Indiana Code section 31-34-19-6. With respect to dispositional orders, Indiana Code
section 31-34-19-6 provides as follows:
If consistent with the safety of the community and the best interest of the
child, the juvenile court shall enter a dispositional decree that:
(1) is:
(A) in the least restrictive (most family like) and most appropriate
setting available; and
(B) close to the parents’ home, consistent with the best interest and
special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the child’s
parent, guardian, or custodian; and
(5) provides a reasonable opportunity for participation by the child’s parent,
guardian, or custodian.
In challenging the propriety of the dispositional order, Mother claims that the
dispositional order fails to conform to the requirements of Indiana Code section 31-34-
19-6 because it did not consider the best interests of the Children or provide Mother with
a reasonable opportunity for participation.
The dispositional order granted wardship of the Children to DCS, maintained the
Children’s placement with Father, and ordered Mother to participate in reunification
services. The dispositional order recognized that services were necessary as the Children
had been exposed to physical abuse in Mother’s home. The Children were placed in
dispositional hearing in support of her claim that the evidence presented by DCS was insufficient to
sustain the juvenile court’s determination that the Children are CHINS, we conclude that Mother’s claim
is merely an invitation to reweigh the evidence, which we will not do. See In re K.D., 962 N.E.2d at
1253.
7
Father’s care and were given the opportunity to participate in therapy and therapeutic
visitation with Mother. The juvenile court determined that continued placement with
Father was in the Children’s best interest because it represented the least restrictive, most
home-like, and appropriate placement available for the Children.
Mother complains that she was denied a reasonable opportunity to participate in
services with the Children because Father could dictate Mother’s participation by
scheduling the Children’s counseling sessions. Mother, however, did not claim on appeal
that she was unable to attend any of the necessary counseling sessions with the children
due to scheduling conflicts.
The juvenile court heard testimony during the dispositional hearing that Father
was initially notified of the Children’s counseling sessions after the sessions were
scheduled. Father had requested that some of the sessions be rescheduled and that the
Children’s counseling sessions be scheduled for the same time, either as a group or
individually, rather than for separate days or separate times. Father testified that it took
three to four weeks to receive notification that his request had been granted.
The juvenile court also heard evidence that the Children had to miss school to
attend some of the scheduled appointments. The juvenile court stated that it was
disturbed that counseling sessions were scheduled for a time when the Children were
scheduled to be in school. The juvenile court indicated that future sessions should be
scheduled for a time when the Children were not to be in school and that DCS should
arrange transportation for the Children, if needed, to ensure participation in the necessary
counseling with Mother. Mother has failed to prove that the dispositional order did not
8
represent the best interests of the Children or provide her with a reasonable opportunity to
participate in necessary services.
The judgment of the juvenile court is affirmed.
RILEY, J., and ROBB, J., concur.
9