In the Matter of: A.K., A Child in Need of Services: J.K. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 04 2016, 6:18 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel C. Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: A.K., A Child October 4, 2016
in Need of Services: Court of Appeals Case No.
67A01-1605-JC-1111
J.K. (Father), Appeal from the Putnam Circuit
Appellant-Respondent, Court
The Honorable Joseph D. Trout,
v. Special Judge
Trial Court Cause No.
The Indiana Department of 67C01-1506-JC-68
Child Services,
Appellee-Petitioner.
Bradford, Judge.
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Case Summary
[1] On March 26, 2016, A.K. (“Child”) was determined to be a Child in Need of
Services (“CHINS”) after Appellee-Petitioner the Department of Child Services
(“DCS”) received a report which indicated that the Child may be the victim of
abuse or neglect. Appellant-Respondent J.K. (“Father”) appeals from this
determination, arguing that his due process rights were violated and that the
juvenile court abused its discretion in admitting certain evidence during the
fact-finding hearing. Concluding that Father has failed to establish that he
suffered a violation of his due process rights or that the juvenile court abused its
discretion in admitting the challenged evidence, we affirm the judgment of the
juvenile court.
Facts and Procedural History
[2] Father has a substantiated history with DCS dating back to 2004. At all times
relevant to the instant appeal, Father and A.P. (“Mother”) were engaged in a
romantic relationship. Father and Mother (collectively, “Parents”) have a
number of children together, including Child who was born in June of 2015. At
the time Child was born, Parents were parties to an ongoing CHINS case
involving their other children. The other children had previously been removed
from Parents’ home and were placed in a relative foster care.
[3] On June 18, 2015, after learning that Mother had become pregnant with and
given birth to Child, DCS personnel, accompanied by law enforcement and the
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therapist assigned to work with Parents in the ongoing CHINS case, went to the
family’s residence to conduct a child-welfare check. DCS personnel had
previously attempted to conduct a child-welfare check on June 15, 2015, but
neither Father nor Mother would answer the door. Prior to arriving at Parents’
home, DCS personnel obtained an emergency order to remove Child from
Parents’ home. This decision was made due to Parents non-compliance with
the services offered and lack of progress made in the ongoing CHINS case,
which resulted in a failure to remedy the reasons for the removal and continued
custody of Parents’ other children.
[4] After DCS personnel arrived at Parents’ home, DCS personnel observed Father
remove a gun from a cabinet. While still in possession of the gun, Father
barricaded himself in a room with Mother and Child. An approximately
fifteen-hour standoff between law enforcement officials and Parents followed,
during which time Parents remained inside their residence with Child. At some
point during the standoff, Mother became belligerent and refused to cooperate,
and Father indicated that he planned to carry out “suicide by cop” stating that
he had “six rounds and one for the Chief of Cloverdale.” Appellant’s App. Vol.
2 p. 15. Eventually, Parents exited their residence and surrendered to law
enforcement on the condition that Child would be released to Mother after
being examined at a local hospital. Father was then arrested on preliminary
charges of resisting law enforcement and neglect of a dependent.
[5] On June 22, 2015, DCS filed a petition alleging that Child was a CHINS. Also
on June 22, 2015, the juvenile court held an initial/detention hearing. At the
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conclusion of this hearing, the juvenile court ordered that Child shall remain in
the home with Mother provided that (1) Father have no contact with Mother or
Child, (2) no one shall be allowed to provide care for Child unless that person
has been approved by DCS, and (3) in order to protect the privacy of Child, the
parents not post information about the case on social media or other internet
sites.
[6] The juvenile court conducted a two-day fact-finding hearing on December 8,
2015, and January 26, 2016, after which it adjudicated the Child to be a
CHINS. The juvenile court subsequently held a dispositional hearing after
which it ordered Father to participate in certain services. This appeal follows.
Discussion and Decision
I. Due Process
[7] Father contends that his due process rights were violated when the juvenile
court issued an emergency order allowing for the Child’s removal from his and
Mother’s care. “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) (internal quotation 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 (Ind. 2012) (quoting Mathews v. Eldridge, 424
U.S. 319, 333 (1976)). The Indiana Supreme Court has previously held that the
process due in a CHINS adjudication turns on the balancing of the three factors
set forth in Mathews: (1) the private interests affected by the proceeding; (2) the
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risk of error created by the State’s chosen procedure; and (3) the countervailing
governmental interest supporting use of the challenged procedure. Id. (citing
Mathews, 424 U.S. at 335); see also In re C.G., 954 N.E.2d 910, 917 (Ind. 2011).
[8] With respect to emergency orders for removal of a child from her parents’ care,
Indiana Code section 31-32-13-7 provides as follows:
If:
(1) the juvenile court determines on the juvenile
court’s review of the record that an emergency exists;
or
(2) the moving party demonstrates by sworn
testimony or affidavit that an emergency exists;
the juvenile court may issue an emergency order without a
hearing.
(Emphasis added). On appeal, Father argues only that the juvenile court erred
in issuing the emergency order because the moving party, i.e., DCS, did not
demonstrate by sworn testimony or affidavit that an emergency existed. Father,
however, makes no argument as to whether the juvenile court determined that
an emergency existed after reviewing the court’s record.
[9] Review of the record demonstrates that the special judge assigned to preside
over the underlying CHINS proceedings allowed Father to question the judge
who granted the emergency order (“the emergency hearing judge”) during the
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second day of the evidentiary hearing.1 The record reveals that upon being
questioned by Father as to why he issued the emergency order, the emergency
hearing judge explained as follows:
On the grounds that your other children had already been
removed, that you were refusing to let the DCS see the newborn
baby, that the mother of the child -- they didn’t even know that
she was pregnant, didn’t even know anything about it, and so
there were great concerns that you had previously abused your
other children, that maybe you might (indiscernible) this child as
well.… I’m pretty sure that there was a lot of things going on at
that time, [Father], but because you had already [had] your other
children removed from your care, and that you had, I believe you
were refusing to allow them to even have access to the child, that
they came and asked about that, so I had at that time did say
“yes” you know and we got that kind of problem going on[.]
Tr. p. 270. The emergency hearing judge further stated that at the time he
issued the emergency order, the problem was that “[n]o one knew whether we
were … fine or not because … you would not allow any kind of access to the
child.” Tr. p. 271. The emergency hearing judge’s answers to the questions
posed by Father indicate that he considered the court’s record, as contemplated
by Indiana Code section 31-32-13-7(1), in making the decision to grant the
emergency order.
1
Although Father was represented by counsel during the evidentiary hearing, the record
indicates that Father requested permission to question the emergency hearing judge and a few
other witnesses whom he wished to call despite the fact that his counsel refused to call these
witnesses and engage in the line of questioning desired by Father.
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[10] In addition, the record indicates that during his questioning of the emergency
hearing judge, Father pressed the emergency hearing judge as to whether he felt
the Child should be found to be a CHINS. When pressed by Father, the
emergency hearing judge acknowledged that, while his opinion was not
relevant as he was no longer the judge overseeing the case, he believed that the
Child was a CHINS. When further pressed by Father as to why he held this
opinion, the emergency hearing judge stated the following:
Because you go through episodes of clarity. And also you go
through episodes of madness. And you go up and down all over
the place in your past history. You’ve had domestic abuse
charges and allegations against you. You’ve had your one boy
removed from you. You’ve had the other kids removed by me.
And you know. There’s just a huge concern about your mental
stability.
Tr. p. 286. This statement further indicates the emergency hearing judge’s
knowledge of the potential for an emergency situation when it issued the
emergency order.
[11] The emergency hearing judge’s testimony demonstrates that he considered
information known to him from the court’s records before granting the
emergency order. Thus, the emergency hearing judge satisfied the requirements
of Indiana Code section 31-32-13-7. Further, in light of the emergency hearing
judge’s testimony relating to what information he considered before granting
the emergency order, we conclude that Father has failed to establish that the
emergency hearing judge’s records relating to the family were insufficient to
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support his determination that an emergency existed which would justify an
emergency order for removal of the Child from her parents’ care. Father,
therefore, has also failed to establish that his due process rights were violated
when the emergency hearing judge issued the emergency order.
II. Admission of Evidence
[12] Father also contends that the juvenile court abused its discretion in admitting
certain evidence during the evidentiary hearing. For its part, DCS contends
that the juvenile court did not abuse its discretion in this regard. Evidentiary
determinations are committed to the juvenile court’s discretion, and we will
reverse that determination only upon a showing of an abuse of discretion.
Matter of J.L.V., Jr., 667 N.E.2d 186, 189 (Ind. Ct. App. 1996) (citing Columbian
Rope Co. v. Todd, 631 N.E.2d 941, 943 (Ind. Ct. App. 1994), trans. dismissed).
[13] Father argues that the juvenile court abused its discretion by admitting evidence
of his prior DCS history and related criminal charges. Review of the record,
however, demonstrates that Father, himself, introduced evidence relating to his
prior history with DCS and of his related criminal charges. 2 It is well-
established that “[a] party cannot complain of action he himself invites.” White
v. State, 222 Ind. 423, 427, 54 N.E.2d 106, 107 (1944). Father, therefore, cannot
2
Father introduced this evidence during his direct examination of the emergency hearing judge
and the Owen County Deputy Prosecutor.
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demonstrate that the juvenile court abused its discretion in allowing DCS to
introduce substantially similar, if not identical, evidence.
[14] Further, we have previously concluded that admission of evidence regarding a
parent’s prior involvement with DCS, including evidence of prior CHINS
proceedings involving other children, is in accordance with relevant statutory
authority and the Rules of Evidence.3 Matter of J.L.V., Jr., 677 N.E.2d at 191.
Evidence of Father’s prior history with DCS, including evidence relating to
active CHINS cases involving the couple’s other children and a lack of progress
made by Father in those cases, is relevant to the instant concerns surrounding
whether the Child is a CHINS. Specifically, this evidence is relevant because it
demonstrates that Father has engaged in a pattern of child abuse and neglect
and that concerns relating to this pattern of abuse and neglect have yet to be
rectified. For this additional reason, we conclude that the juvenile court did not
abuse its discretion in allowing for the admission of evidence relating to
Father’s prior history with DCS and his related criminal charges.
[15] The judgment of the juvenile court is affirmed.
3
In the Matter of J.L.V., Jr., we considered whether admission of evidence of a parent’s prior
involvement with DCS was in accordance to Indiana Code section 31-6-7-13 which was the
predecessor of the current applicable code section, Indiana Code section 31-34-12-5. Seeing as
the language of then-Indiana Code section 31-6-7-13 is substantially similar to the language of
Indiana Code section 31-34-12-5, we see no reason why our conclusion in the Matter of J.L.V.,
Jr. would not also apply to a consideration of admissibility of such evidence under Indiana Code
section 31-34-12-5.
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Pyle, J., and Altice, J., concur.
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