In the Matter of: M.W., Minor Child, A Child in Need of Services, E.W., Father v. Indiana Department of Child Services ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
Jun 19 2013, 7:05 am
this Memorandum Decision shall not be
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.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL PATRICK M. RHODES
Marion County Public Defender Agency DCS, Marion County Local Office
Indianapolis, Indiana Indianapolis, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF: M.W., Minor Child, )
A CHILD IN NEED OF SERVICES, )
)
E.W., Father, )
)
Appellant-Respondent, )
)
vs. ) No. 49A05-1210-JC-500
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Rosanne Ang, Magistrate
Cause No. 49D09-1207-JC-29412
June 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
E.W. (“Father”) appeals the juvenile court’s parental participation order entered as
part of its dispositional order. Father raises one issue which we revise and restate as
whether the court abused its discretion in ordering him to undergo a substance abuse
assessment and submit to random drug screens. We affirm.
FACTS AND PROCEDURAL HISTORY
On July 20, 2012, M.W., who was born on May 6, 2012, was dropped on her head
by Father from approximately waist high. Father and S.T. (“Mother”) did not seek
immediate medical treatment for M.W.1 On July 23, 2012, Father and Mother took M.W.
to Methodist Hospital for a previously scheduled appointment. Doctors observed a bump
on M.W.’s head, and Father disclosed that M.W. had been dropped. M.W. was then
transferred to Riley’s Children Hospital.
Later that day the Marion County Department of Child Services (“MCDCS”)
received a report alleging abuse of M.W. The report stated that M.W. had a skull fracture
and subdural bleeding on her brain. On the same day, the MCDCS received a report that
Mother visited Health Net with suicidal thoughts and had a plan to kill herself by taking
pills. The report stated that M.W. had been dropped on the floor and that no medical
attention had been sought. It also stated that Father seemed aggressive and angry and that
there had been a history of domestic violence.
On July 25, 2012, the MCDCS filed a Verified Petition Alleging Children to be in
Need of Services (“CHINS”).2 In its petition, the MCDCS alleged that M.W. was a
1
Mother does not participate in this appeal.
2
The petition also alleged that H.T., another child of Mother, was a CHINS, but Father is not
2
CHINS and that Mother and Father were unable to provide M.W. with a “safe and
appropriate living environment.” Appellant’s Appendix at 24. That same day, the
MCDCS filed the Intake Officer’s Report of Preliminary Inquiry and Investigation, which
alleged that Father had stated that Mother was now drinking about a pint of vodka every
night and that when he tries to leave Mother will “get physical and hit him.” Id. at 27.
The report stated that Mother indicated that she “has a few shots a few times a week and
will smoke pot when she is out of her anxiety medication or her medication is not
working.” Id. The report also indicated that a social worker had stated that Mother had
started drinking heavily, “is a mean drunk,” hits Father when she drinks, that there were
concerns of domestic violence in the home, and further alleged that Father had attempted
suicide twice. Id. at 28. The report also provided that a nurse indicated that Mother
stated that she drinks and smokes marijuana to relax and that Father had hit her in the
past, and that the nurse believed that Father “has difficulties controlling his anger and
domestic violence resources should be addressed.” Id. at 29.
That same day, the court held a hearing and found that there was probable cause to
believe M.W. was a CHINS because she was seriously endangered. 3 The court entered
an Order Regarding Children in Need of Services Initial / Detention Hearing which
observed that M.W. was at Riley Hospital at that time and ordered continued placement
of M.W. with Mother and Father “contingent upon [Mother] and [Father] participating in
H.T.’s father. While H.T. was mentioned in the various pleadings and orders, this opinion focuses on
M.W.
3
The record does not contain a copy of the transcript of this hearing.
3
Homebuilders, [Mother] submitting to random drug and alcohol screens, [Mother] taking
her medications as prescribed, [and Mother] and [Father] completing a domestic violence
assessment and following any recommendations . . . .” Id. at 44.
On July 30, 2012, the MCDCS filed a Request for Authorization for Removal
from Placement with Mother, Request for Authorization of Placement in Relative Care,
Foster Care, and/or Therapeutic Foster Care, Request for a Detention Hearing and Order
with Proper Detention Findings. The request attached an affidavit of the family case
manager which alleged that Mother had been drinking excessively and that she was so
intoxicated that she did not wake while her home was being burglarized and that M.W.
was present during the time Mother was intoxicated and during the burglary.
On August 1, 2012, the MCDCS filed a Notice of Removal from Placement with
Mother and Request for a Detention Hearing on or before August 2, 2012. The notice
alleged that the MCDCS and Homebuilders were unable to ensure the safety of M.W. in
Mother’s care and that the MCDCS proceeded with an emergency removal on July 31,
2012. The notice attached an affidavit from the family case manager which alleged that a
supervisor at Homebuilders stated that there was “another incident where [Mother] had
been drinking and became physical with [Father].” Id. at 56. A letter from Melissa
Kurup, a Homebuilders supervisor, was also attached to the notice which alleged that
Father was not currently residing with Mother but stayed at the home last night “because
he was afraid for the safety of the children.” Id. at 57. The letter also stated: “Based on
the volatility of this relationship it is not in anyone’s best interest for [Father] to feel
‘forced’ to remain in the home out of concern for the children’s welfare.” Id.
4
On August 2, 2012, the court held a detention hearing,4 after which the court
entered an Order Regarding Children in Need of Services Detention Hearing which
indicated that there was sufficient evidence to support the Family Case Manager’s
Preliminary Inquiry and Affidavit of Probable Cause that M.W. was a CHINS and that
detention was necessary to protect M.W.
On August 3, 2012, the court held a continued initial hearing5 and entered an order
titled Order Regarding Children in Need of Services Pre-Trial Hearing which denied
Father’s request that M.W. be placed with him.
On August 17, 2012, the court held another hearing6 and entered an order which
found that Mother admitted that M.W. was a CHINS because M.W. suffered a head
injury from falling from her chair and Mother and Father “did not immediately take her
to the hospital, even though [Mother] told [Father] that they should take her.” Id. at 77.
According to the court’s order, Mother also admitted that she “has a history of anxiety
and depression and has been drinking more alcohol lately when she is under stress” and
“she has been involved in domestic disputes with [Father].” Id. The court’s order also
observed that Father waived fact-finding. The court adjudicated the children to be
CHINS, ordered the MCDCS to file a predispositional report, and set the matter for
disposition.
4
The record does not contain a copy of the transcript of this hearing.
5
The record does not contain a copy of the transcript of this hearing.
6
The record does not contain a copy of the transcript of this hearing.
5
Under the heading “Options Recommended for the Plan of Care, Treatment,
Rehabilitation, or Placement of the Child,” a predispositional report dated August 31,
2012, states:
M. SUBSTANCE ABUSE ASSESSMENT: [Father] will complete a
substance abuse assessment and follow all treatments and
successfully complete all treatment recommendations developed as a
result of the substance abuse assessment.
N. RANDOM DRUG SCREENS: [Father] must submit to random
drug/alcohol screens within one hour of request. If positive results
are found the individual will be responsible for costs associated with
a screening. If negative results are indicated, DCS will be
responsible for costs associated with a screening. Any request for
drug screen that is not completed in a timely manner will result in a
positive result indication.
Id. at 95. The report later states that Father “should participate in a substance abuse
assessment and treatment to help him understand triggers that are causing him to
consistently use illegal substances” and that he “should participate in random alcohol and
drug screens to demonstrate that he is currently not using.” Id. at 97.
On September 7, 2012, the court held a dispositional hearing. At the beginning of
the hearing, the court asked the parties if they objected to the recommendation contained
in the predispositional report, and Father’s attorney objected to the substance abuse
assessment and random screens because they were not supported by the petition or the
preliminary inquiry. Father’s attorney also objected to the recommendation regarding
domestic violence. At one point, the attorney for the MCDCS stated that Mother had
reported that she and Father had “use[d] together.” Transcript at 3.
The court asked Father’s attorney if she had any response, and Father’s attorney
objected, stating in part:
6
The facts are not supported by the petition. . . . I mean I think it’s
questionable and there’s nothing concrete to support that. I believe if DCS
believes [Father] is using substances, then maybe they need to file a motion
and ask the Court to testify . . . [o]r ask the Court to authorize drug screens
at that time but right now, there’s nothing concrete to support it.
Id. at 4.
The court then asked about the conversation with Mother, and the MCDCS’s
attorney stated that the conversation was between Mother, the case manager, and the
guardian ad litem. The case manager then stated that Mother had mentioned that Father
uses marijuana, that they used together, and that that was “one of the concerns that
[Mother] had as far as [Father].” Id. at 6. The case manager stated that the conversation
with Mother had occurred about a week or two previously. The guardian ad litem then
stated that he was “in agreement with DCS” and that “it was said by [Mother] in
relationship to the conversation [they] were having about services.” Id. Father’s attorney
then stated: “Still Judge, that’s not specific[]. She didn’t say when they were using or, or
anything towards that.” Id.
After further discussion, the court stated: “I am going to order that [Father] do the
screens and the assessment. If in fact the treatment isn’t warranted then the assessment
will give us that information. But I do think that there is a sufficient basis for that.” Id.
at 7. The court also stated that it would order a domestic violence assessment. Father’s
attorney then asked that the court not order Father to pay a ten dollar reimbursement.
During questioning from the trial court, Father’s attorney indicated that Father typically
works forty hours per week and earns eleven dollars per hour. The court indicated that it
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would order the reimbursement given that Father has the financial means and that there
are a number of services that were being referred and ordered.
The court subsequently entered its Dispositional Order which found that it was in
M.W.’s best interests to be continued to be removed from the home environment because
the allegations were found to be true. The court ordered that M.W. be under the
temporary supervision of the MCDCS for her protection and that the permanency plan for
M.W. was reunification with Mother and Father. The court ordered that the
recommendations made by the MCDCS in the predispositional report should be adopted
by the court.
The issue is whether the court abused its discretion in ordering Father to
participate in a substance abuse assessment and random drug screens. Father argues that
there is no substantial basis for the court’s order that he undergo evaluation for substance
abuse or engage in such services. He maintains that “it would seem reasonable that the
services a parent is to complete under any type of order or agreement have a rational
connection with the reasons for that parent coming to the attention of the State.”
Appellant’s Brief at 12. He further asserts that “[t]here is no mention in the Verified
Petition or the Intake Officer’s Report of Preliminary Inquiry and Investigation of
[Father’s] use of any controlled substances or alcohol.” Id. at 13. Father contends that
“[t]he only mention of marijuana use occurred in unsworn statements during the hearing
that arose out of a colloquy between the juvenile court, counsel for DCS, the [family case
manager], and the Guardian Ad Litem,” and that those statements did not constitute
evidence. Id. In the conclusion portion of his brief, Father requests that the order of the
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juvenile court that he undergo substance abuse evaluation and treatment and that he pay
costs related thereto be vacated.
The MCDCS argues that the rules of evidence do not apply to preliminary juvenile
matters and the court can consider a wider variety of evidence than in an adversarial
hearing. The MCDCS asserts that the evidence revealed that Mother was concerned
about Father’s use of marijuana and that the parents sometimes used marijuana together.
The MCDCS points out that Mother and Father had a history of domestic violence that
was exacerbated by Mother’s substance abuse and that one of the reasons the MCDCS
removed M.W. was Mother’s involvement in domestic violence with Father.
When a court’s order contains specific findings of fact and conclusions of law, we
engage in a two-tiered review. In re T.S., 906 N.E.2d 801, 804 (Ind. 2009); Hallberg v.
Hendricks Cnty. Office of Family & Children, 662 N.E.2d 639, 643 (Ind. Ct. App. 1996).
First, we determine whether the evidence supports the findings. T.S., 906 N.E.2d at 804.
Then, we determine whether the findings support the judgment. Id. Findings are clearly
erroneous when there are no facts or inferences drawn therefrom that support them. Id.
A judgment is clearly erroneous if the findings do not support the trial court’s
conclusions or the conclusions do not support the resulting judgment. Id. The appellate
court should not reweigh the evidence or judge the credibility of witnesses, but should
view the evidence and its reasonable inferences most favorably to the judgment. Id.
We begin by addressing Father’s argument that the statements of the family case
manager and the guardian ad litem at the hearing did not constitute evidence. We note
that a juvenile court can admit a dispositional report of DCS even if it includes hearsay.
9
See In re K.D., 962 N.E.2d 1249, 1259 (Ind. 2012) (“At a dispositional hearing, the
juvenile court can admit the dispositional report of DCS even if it includes hearsay.”);
Ind. Code § 31-34-19-2 (“Any predispositional report may be admitted into evidence to
the extent that the report contains evidence of probative value even if the report would
otherwise be excluded.”).
Even if the Rules of Evidence applied to the dispositional hearing, we do not find
that Father’s arguments require reversal. Father concedes that he did not object to the
matters related to the juvenile court by the family case manager and the guardian ad
litem, but argues, without citation to authority, that the error is not waived. Failure to
object to the admission of evidence results in waiver of the error. Raess v. Doescher, 883
N.E.2d 790, 796 (Ind. 2008), reh’g denied. The Indiana Supreme Court has observed that
“[a] claim of trial court error in admitting evidence may not be presented on appeal
unless there is a timely trial objection ‘stating the specific ground of objection, if the
specific ground was not apparent from the context.’” Id. at 797 (citing Ind. Evidence
Rule 103(a)(1)). “To preserve a claimed error in the admission of evidence, a party must
make a contemporaneous objection that is sufficiently specific to alert the trial judge fully
of the legal issue.” Id. (citation and internal quotation marks omitted). Because Father
failed to object to the statements of the family case manager and the guardian ad litem, he
has waived the issue on appeal. See id. (holding that the defendant may not present
grounds on appeal that were not made at trial to support an objection and that the
defendant’s claim was barred); Slauter v. Whitelock, 12 Ind. 338, 340 (1859) (holding
that if no motion was made by either party with respect to the receipt of unsworn
10
testimony then “it would amount to an acquiescence in the reception of his statements as
evidence in the case”).
To the extent that Father argues that there is no substantial basis for the court’s
order that he undergo evaluation for substance abuse or engage in such services, we
disagree. Ind. Code § 31-34-20-3 provides:
If the juvenile court determines that a parent, guardian, or custodian should
participate in a program of care, treatment, or rehabilitation for the child,
the court may order the parent, guardian, or custodian to do the following:
(1) Obtain assistance in fulfilling the obligations as a
parent, guardian, or custodian.
(2) Provide specified care, treatment, or supervision for
the child.
(3) Work with a person providing care, treatment, or
rehabilitation for the child.
(4) Participate in a program operated by or through the
department of correction.
“Although the juvenile court 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.” In re A.C., 905 N.E.2d
456, 464 (Ind. Ct. App. 2009).
The record reveals that Father had previously smoked marijuana with Mother, and
that Mother was concerned about this. The record also reveals that Mother drinks heavily
and that there were concerns regarding domestic violence. After the statements of the
family case manager and the guardian ad litem at the hearing, the trial court found that
there was “sufficient basis” for Father to complete a substance abuse assessment and
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random drug screens. Transcript at 7. We also observe that the predispositional report
recommended that Father complete a substance abuse assessment and submit to random
drug screens. Under the circumstances, we conclude that Father’s argument is an
invitation for us to reweigh the evidence, which we cannot do.
For the foregoing reasons, we affirm the trial court’s order.
Affirm.
RILEY, J., and BRADFORD, J., concur.
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