In the Matter of: Child N.J. and J.J., Children in Need of Services, N.J. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2016 )

FILED
MEMORANDUM DECISION
Aug 17 2016, 7:14 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK
Indiana Supreme Court
Memorandum Decision shall not be regarded as Court of Appeals
and Tax Court
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
Rebecca R. Vent Gregory F. Zoeller
Office of the Howard County Public Defender Attorney General of Indiana
Deputy Public Defender
Robert J. Henke
Kokomo, Indiana
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: Child N.J. and August 17, 2016
J.J., Children in Need of Court of Appeals Case No.
Services, 34A02-1601-JC-87
Appeal from the Howard Circuit
N.J. (Father), Court
Appellant-Respondent, The Honorable Lynn Murray, Judge
Cause Nos. 34C01-1510-JC-318;
v.
34C01-1510-JC-319
Indiana Department of Child
Services,
Appellee-Petitioner.
Bradford, Judge.
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Case Summary
[1] Appellant-Respondent N.J. (“Father”) appeals from the juvenile court’s
adjudication that Child N.J. and J.J. (collectively, “the Children”) are children
in need of services (“CHINS”). In early October of 2015, Appellee-Petitioner
the Department of Child Services (“DCS”) received a report of drug use in the
home of Father, who had primary physical custody of the Children at the time.
DCS removed the Children from the home after evidence of a
methamphetamine lab was found in Father’s home.
[2] DCS petitioned the juvenile court to adjudicate Children to be CHINS. At the
initial detention hearing, Mother agreed with the Children’s removal from
Father’s care. At the CHINS hearing in December of 2015, Mother stipulated
that the Children were CHINS. Child N.J. testified that Father struck him
when Father found out that Child N.J. disapproved of Father’s illegal drug
activities and that he was afraid to be in Father’s home. The juvenile court
found the Children to be CHINS and ordered a dispositional hearing. In its
dispositional order, the juvenile court ordered that the Children remain in their
placement outside of Father’s home and that Father and Mother participate in
various services. Father challenges several of the juvenile court’s findings as
unsupported by the record. While we agree with Father’s argument regarding
one finding, we conclude that that error can only be considered harmless. As
such, we affirm.
Facts and Procedural History
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[3] On October 1, 2015, DCS received reports of drug use in Father’s home, which
he shared with the Children, Child N.J., (born July 7, 2004) and J.J. (born
August 1, 2005). In addition, it was reported to DCS that the Children stayed
with friends “off and on[,]” that Father often left them unsupervised, that they
would wake up at night to find themselves alone, and that there were bottles in
the home containing white powder and “little rocks[.]” Appellant’s App. p. 20.
J.J. reported that Father had locked her outside in a storm because his friends
were over and they did not want her in the house. Child N.J. also reported that
Father had struck him when Child N.J. confronted Father about his drug use.
On October 2, 2015, the Children were removed from Father’s care after a
methamphetamine lab was discovered in the home.
[4] On October 6, 2015, DCS petitioned the juvenile court to have the Children
declared CHINS. In summary, the CHINS petitions alleged the following: that
Father was operating a methamphetamine lab in his home, Father often leaves
the Children unsupervised, Father hit Child N.J. when Child N.J. confronted
Father about his drug use, bottles with white power were found in Father’s
home, Father refused to cooperate with DCS’s investigation, and Father is on
the Indiana Sex Offender Registry for sexual misconduct with a minor.
[5] On December 7, 2015, the juvenile court held a CHINS hearing, at the
beginning of which Mother, who is not participating in this appeal, stipulated to
the allegations in the CHINS petitions and that the Children were CHINS.
FCM Duffy testified that following the Children’s removal, Father refused to
come to the DCS to speak with her and told her that he would contact her
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through an attorney but did not. Child N.J. testified that he had seen Sprite
bottles in Father’s home that contained “[r]ock-type stuff.” Tr. p. 27. Child
N.J. also testified that the bottles in Father’s home made him feel unsafe.
[6] On December 7, 2015, Father submitted to a drug screen, which returned
positive results for methamphetamine, amphetamines, THC, and the opiates
morphine and 6-Acetylomorphine. Father’s drug screen from December 16,
2015, was positive for methamphetamine and amphetamines. The drug screen
results were included in the predispositional reports filed on December 23,
2015.
[7] Meanwhile, on December 11, 2015, the juvenile court entered its order
declaring the Children to be CHINS. The order contained the following
findings:
1. [Father and Mother] are the parents of two (2) minor
children, namely: [Child N.J.], born July 7, 2004, age [(11)]
years; and [J.J.], born August 1, 2005, age ten (10) years.
2. Father is the children’s physical and legal custodian.
3. According to the Indiana Sex Offender Registry, father’s
address is [redacted].
4. On October 1, 2015, DCS received a report alleging
concerns for the children while in father’s custody, including an
allegation that there was drug use in the home and a
methamphetamine lab present at the residence[.]
5. The DCS by [FCM Duffy] investigated the report and
spoke with both children regarding the allegations. Father
refused to speak with [FCM Duffy]. At the conclusion of its
investigation, the DCS removed the children and placed them in
foster care and subsequently, relative care.
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6. After a detention hearing held October 6, 2015, the court
found the removal of the children from the parents was required
for their well-being, and authorized DCS to file petitions alleging
each child to be a child in need of services.
7. A fact-finding hearing was held December 7, 2015. Mother
admitted and stipulated to the allegations the children were each
a child in need of services. Evidence was heard, including
testimony by [FCM Duffy], the child [Child N.J.], and mother.
Father refused to testify.
8. [Child N.J.] has observed bottles containing rock-like
substances at his father’s home.
9. [Child N.J.] is aware other persons have purchased
medicines for his father.
10. [Child N.J.] has heard from father’s friend that his father
was caught with a meth lab.
11. After [Child N.J.] asked his father about him using drugs,
father hit him.
12. [Child N.J.] feels unsafe at father’s home.
13. Although not the custodial parent, mother provides
necessities for the children such as clothing and school supplies.
14. Ind. Code § 31-34-1-1 provides a child is a child in need of
services if (1) the child’s physical or mental condition is seriously
impaired or seriously endangered as 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 (8) is unlikely to be provided or accepted without the
coercive intervention of the court.
15. The court finds that the DCS has proved by a
preponderance of evidence that [the Children] are each a child in
need of services as defined in Ind. Code § 31-34-1-1. The court
finds by a preponderance of evidence that the children’s custodial
parent has exposed the children to illegal drug activity placing
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their mental and physical condition in serious danger, and the
children require the coercive action by the court to place them
outside the dangerous environment.
Appellant’s App. pp. 10-11.
[8] On January 4, 2016, the juvenile court held a dispositional hearing. That day,
the juvenile court issued a dispositional order, concluding that it was in the best
interests of the Children to be removed from Father’s home because of an
inability, refusal, or neglect to provide shelter, care, and/or supervision at that
time and that the Children needed protection that could not be provded in
Father’s home.
[9] The juvenile court adopted the statements made in the predispositional report,
including all attachments and exhibits, as findings and made the following
findings regarding the situation:
The Court finds that it is in the best interests of the child[ren] to
be removed from the home environment and remaining in the
home would be contrary to the welfare of the child[ren] because:
• of an inability, refusal or neglect to provide shelter, care,
and/or supervision at the present time
• the child[ren] need[] protection that cannot be provided in
the home
The Court finds that reasonable efforts to prevent or eliminate
removal of the child[ren] were not required due to the emergency
nature of the situation, as follows: on October 1, 2015, an active
Methamphetamine Lab was found in the home at [redacted]. On
October 2, 2015, [J.J.] disclosed that her home is not safe
because: [Father] uses methamphetamine, [Father] locked her
outside in a storm because his friends were over and they did not
want her in the house, [Father] would leave her home alone at
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night and she had to fend for herself. On October 2, 2015, [Child
N.J.] disclosed knowledge of the Methamphetamine Lab,
[Father’s] substance abuse, and not being adequately supervised
by [Father]. [Child N.J.] further disclosed that when he
confronted [Father] about the Methamphetamine Lab, [Father]
hit him on the head.
Appellant’s App. p. 13.
[10] The Juvenile court ordered that the Children maintain their current placement
outside Father’s home and Father’s participation in parenting, mental health,
and substance abuse screens; drug screens; and visitation contingent on
negative drug screens.
Discussion and Decision
[11] With respect to CHINS determinations, the Indiana Supreme Court has stated
the following:
[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 [juvenile] court’s decision and
reasonable inferences drawn therefrom. Id. We reverse only
upon a showing that the decision of the [juvenile] court was
clearly erroneous. Id.…
There are three elements DCS must prove for a juvenile court to
adjudicate a child a CHINS. DCS must first prove the child is
under the age of eighteen; DCS must prove one of eleven
different statutory circumstances exist that would make the child
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a CHINS; and finally, in all cases, DCS must prove the child
needs care, treatment, or rehabilitation that he or she is not
receiving and that he or she is unlikely to be provided or accepted
without the coercive intervention of the court. In re N.E., 919
N.E.2d at 105.
In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (footnote omitted).
[12] Indiana Code section 31-34-1-1, which outlines one of the eleven statutory
circumstances under which a child is a CHINS if satisfied, provides that a child
is a CHINS before the child becomes eighteen years of age if:
(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.
[13] As the Indiana Supreme Court has observed,
Juvenile law is constructed upon the foundation of the State’s
parens patriae power, rather than the adversarial nature of corpus
juris. Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045, 16
L. Ed. 2d 84 (1966). Indeed, juvenile court jurisdiction “is rooted
in social welfare philosophy rather than in the corpus juris.” Id.The purpose of the CHINS adjudication is to “protect the
children, not punish parents.” In re N.E., [919 N.E.2d 102, 106
(Ind. 2010)]. The process of the CHINS proceeding focuses on
“the best interests of the child, rather than guilt or innocence as
in a criminal proceeding.” Id.In re K.D., 962 N.E.2d at 1255.
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[14] Pursuant to Indiana Code section 31-34-19-10,
(a) The juvenile court shall accompany the court’s dispositional
decree with written findings and conclusions upon the record
concerning the following:
(1) The needs of the child for care, treatment, rehabilitation,
or placement.
(2) The need for participation by the parent, guardian, or
custodian in the plan of care for the child.
(3) Efforts made, if the child is a child in need of services, to:
(A) prevent the child’s removal from; or
(B) reunite the child with;
the child’s parent, guardian, or custodian in accordance with
federal law.
(4) Family services that were offered and provided to:
(A) a child in need of services; or
(B) the child’s parent, guardian, or custodian;
in accordance with federal law.
(5) The court’s reasons for the disposition.
(6) Whether the child is a dual status child under IC 31-41.
(b) The juvenile court may incorporate a finding or conclusion
from a predispositional report as a written finding or conclusion
upon the record in the court’s dispositional decree.
[15] Father argues that the juvenile court’s conclusion that section 31-34-1-1 was
satisfied constitutes an abuse of discretion because the record did not contain
sufficient evidence that the Children’s physical or mental condition was
seriously impaired or seriously endangered. It is worth noting that DCS was
not required to establish that the Children had already been harmed. “The
CHINS statute … does not require that a court wait until a tragedy occurs to
intervene.” In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009) (citing Roark v.
Roark, 551 N.E.2d 865, 872 (Ind. Ct. App. 1990)). “Rather, a child is a CHINS
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when he or she is endangered by parental action or inaction.” Id. Father
challenges the juvenile court’s findings in its dispositional decree that he
exposed the Children to illegal drug use in his home; he abused Child N.J.;
Child N.J. feels unsafe in his home; and he failed to properly supervise the
Children. We conclude, however, as previously described, that the record
contains ample evidence to support the juvenile court’s disposition.
A. Illegal Drug Use
[16] Father argues that the record contains insufficient evidence of illegal drug use in
his home, citing the lack of photographic evidence, law enforcement testimony,
forensic analysis evidence, and criminal charges. FCM Duffy testified that she
received confirmation from her supervisor that a methamphetamine lab had
been found in Father’s home. DCS also presented evidence that Father told
another person that he was caught with a methamphetamine lab in his home
and that this person told Child N.J. Child N.J. testified that he observed bottles
containing rock-like substances in Father’s home and was aware that Father
had had other persons buy him medicines. It should also be noted that Father
submitted to drug screens on the day of the CHINS hearing and nine days
afterwards, both of which indicated positive results for methamphetamine and
amphetamines and the first of which also indicated the presence of THC and
the opiates morphine and 6-Acetylomorphine.
[17] Moreover, Father refused to testify at the CHINS hearing, invoking his right
“to remain silent in regard to a criminal case.” Tr. p. 14. It is well-settled that
“[a]lthough the refusal to testify in a civil case cannot be used against the one
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asserting the privilege in a subsequent criminal proceeding, the privilege against
self-incrimination does not prohibit the trier of fact in a civil case from drawing
adverse inferences from a witness’[s] refusal to testify.” Gash v. Kohm, 476
N.E.2d 910, 913 (Ind. Ct. App. 1985), trans. denied. The juvenile court was
therefore within its rights to draw a negative inference regarding Father’s
participation in illegal activity from Father’s refusal to testify at the CHINS
hearing. Father’s argument is an invitation to reweigh the evidence, which we
will not do.
B. Abuse of Child N.J.
[18] Father contends that DCS presented insufficient evidence that he has abused
Child N.J. Child N.J. testified that Father “kind of hit me once” when Father
found out that Child N.J. was unhappy about Father’s drug use. Father now
argues on appeal that Child N.J.’s knowledge of Father’s drug use was based on
hearsay from another individual. Father’s argument in this regard is just an
invitation to reweigh the evidence, which we will not do.
C. Child N.J. Feeling Unsafe in Father’s Home
[19] Father seems to challenge the juvenile court’s finding that Child N.J. feels
unsafe in Father’s home. When asked if anything in Father’s home made him
feel unsafe, however, Child N.J. testified “the bottles.” Tr. p. 29. At the very
least, this testimony supports the juvenile court’s finding. Moreover, a
reasonable inference can be drawn that Child N.J. felt unsafe because Father
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has struck him. Again, Father invites us to reweigh the evidence, which we will
not do.
D. Failure to Supervise
[20] Finally, Father challenges the juvenile court’s finding in the dispositional order
that Father failed to provide adequate supervision to the Children. DCS
concedes that no evidence admitted during the CHINS proceeding supports this
finding. DCS, however, contends that the finding amounts to nothing more
than harmless error. “[E]ven an erroneous finding is not fatal to a trial court’s
judgment if the remaining valid findings and conclusions support the judgment,
rendering the erroneous finding superfluous and harmless as a matter of law.”
Curley v. Lake Cty. Bd. of Elections & Registration, 896 N.E.2d 24, 32 (Ind. Ct.
App. 2008) (citation omitted), trans. denied. We agree with DCS that the
juvenile court’s error does not necessitate reversal of the dispositional decree.
Evidence of Father’s illegal drug activity in the home shared with the Children,
which was clearly the focus of the juvenile court’s attention, along with
evidence of physical abuse of Child N.J. and Child N.J.’s fear are more than
enough to sustain the juvenile court’s determination that the Children are
CHINS. Any error the juvenile court made in finding that the Children were
inadequately supervised can only be considered harmless. Father has failed to
establish that the juvenile court’s disposition is clearly erroneous.
The judgment of the juvenile court is affirmed.
Pyle, J., and Altice, J., concur.
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