In the Matter of K.F. (Minor Child), a child in need of services K.J. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 30 2019, 10:14 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
Isabella H. Bravo Curtis T. Hill, Jr.
Monroe County Public Defender’s Attorney General of Indiana
Office
Katherine A. Cornelius
Bloomington, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of K.F. (Minor December 30, 2019
Child), a child in need of Court of Appeals Case No.
services; 19A-JC-1409
K.J. (Mother), Appeal from the Monroe Circuit
Court
Appellant-Respondent,
The Honorable Holly M. Harvey,
v. Judge
Trial Court Cause No.
Indiana Department of Child 53C06-1810-JC-806
Services,
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] K.J. (“Mother”) appeals the trial court’s dispositional order issued following the
adjudication of her son, K.F., (“K.F.”), as being a Child in Need of Services
(“CHINS”). Mother specifically argues that the trial court abused its discretion
in admitting Court-Appointed Special Advocate Cynthia York’s (“CASA
York”) dispositional report (CASA York’s report) into evidence at the
dispositional hearing. She asks this Court to order the redaction of CASA
York’s report, the testimonial record of the dispositional hearing, and the trial
court’s dispositional order. According to Mother, the information that she
seeks to have redacted could potentially lead to the termination of her parental
rights in a future proceeding. Concluding that this issue is not ripe for review,
we dismiss the appeal.
[2] We dismiss.
Issue
Whether this appeal should be dismissed because the issue is not
ripe for review?
Facts
[3] The evidence most favorable to the CHINS adjudication reveals that Mother is
the parent of K.F., who was born in January 2012. In October 2018,
Department of Child Services (“DCS”) filed a petition alleging that K.F. was a
CHINS. At the CHINS factfinding hearing, sole witness DCS Family Case
Manager Lorinda Walker (“FCM Walker”), testified that earlier that month,
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K.F. had walked to school barefoot at approximately 6:15 p.m. According to
FCM Walker, Mother had been contacted, and when she had arrived at the
school, she had grabbed K.F., pulled him into the car, and told him he was
“going to get a whipping.” (Tr. 32). FCM Walker further testified that K.F.
had not attended school the following day. In addition, FCM Walker testified
that two days later, K.F. had disclosed that he had been “whipped.” (Tr. 32).
According to FCM Walker, K.F. had had bruises on his upper arm and lower
back. Lastly, FCM Walker testified that Mother had been charged with battery
on a minor and neglect of a dependent and that K.F. had been placed in foster
care.
[4] Following FCM Walker’s testimony, the trial court “[found] that [K.F. was] a
[CHINS] and that the coercive intervention of the Court [was] required[.]” (Tr.
36). Thereafter the parties discussed scheduling the dispositional hearing.
During the discussion, Mother’s counsel agreed to CASA York submitting her
report at the dispositional hearing.
[5] At the March 2019 dispositional hearing, FCM Walker testified that she
recommended that Mother complete a “clinical interview and assessment” and
meet with a therapist. (Tr. 61). FCM Walker also testified that since the
hearing earlier that month, DCS had had some new concerns during visitation
where Mother “acknowledged that she [had gone] too far with punishing
[K.F.].” (Tr. 64). In addition, there had “also been a few instances of what the
visit supervisor ha[d] stated as intimidation.” (Tr. 64). Further, there were “a
few occasions of [K.F.] asking [Mother] to stop when she was tickling him and
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then her not stopping and then one instance where the visit supervisor believed
[Mother had] pulled on his hair.” (Tr. 64).
[6] Also at the hearing, CASA York testified that the sources of information for her
report were FCM Walker, the visitation supervisor, K.F.’s therapist, the home-
based case manager, the foster parents, K.F.’s teacher (“K.F.’s teacher”), K.F.’s
school social worker (“K.F.’s school social worker”), Mother, and K.F. CASA
York further testified as follows regarding “[w]hat was currently happening
with [K.F.]”:
[K.F.] is acting out at school, ah, right now. He, um, had, he
initially had adjusted very well to foster care. In fact, um, the
foster mother said she’d never seen a child adjust so fast and they
had had numerous children. Um, now he’s, he’s acting out a lot
at school. He seems to be, um, angry[.] He, um, has, does not
get along well with other children at school[.] He, um, has, ah,
tortured a cat in their house. Was mean, intentionally to a cat
that he was previously fond of.
(Tr. 76, 77). Based on these behaviors, CASA York believed that K.F. required
ongoing therapy.
[7] CASA York also testified that K.F. had reported additional incidents of
physical abuse that had occurred in his mother’s home. Specifically, according
to CASA York, K.F. had told his foster parents that Mother had hit him with a
charger cord, a wooden spoon, and a hanger. CASA York further testified that
when she had asked Mother “what misbehaviors would rise to the level to
deserve these things,” Mother responded that K.F. had played video games
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before doing his homework and had not done his chores. (Tr. 77). From
discussions with Mother, it appeared to CASA York that Mother still believed
that this method of discipline was appropriate. CASA York also recommended
that Mother attend therapy and suggested that Mother’s therapist help Mother
to understand that hitting K.F. with objects was not an appropriate way to
discipline a child.
[8] Following CASA York’s testimony, her counsel offered CASA York’s report
into evidence. Mother objected. Mother’s counsel then asked CASA York
whether she had had contact with the sources for the report before the fact-
finding hearing. CASA York responded that she had definitely spoken with
K.F.’s teacher and school social worker before the fact-finding hearing.
However, CASA York was not certain whether she had spoken with K.F.’s
foster parents or therapist before the fact-finding hearing. Mother again
objected to the admission of CASA York’s report. She specifically argued that
any information CASA York had learned before the fact-finding hearing that
had not been disclosed at the fact-finding hearing but had been included in her
dispositional report was not admissible. Mother specifically explained as
follows:
I believe that CASA’s report, um, describes a circumstance
outside, beyond that described in the, ah, CHINS order. And the
issue is that there is extensive information that hadn’t, that
wasn’t vetted, that didn’t go through the evidentiary process, um,
to be adjudicated and to be, and to be included in the fact-finding
order. And so, that was available to CASA prior to the fact-
finding. And so, I understand if there are circumstances that
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came to light between the fact-finding and the dispositional and,
um, [K.F.’s] status here, ah, today, um, that CASA testified to
saying that he has, ah, since being placed with foster care today
now he’s adjusted. All of those are changed circumstances since
the fact-finding, but, but the extensive information in the CASA’s
report contains information that was, facts were available to
CASA prior, available to CASA and DCS prior to.
(Tr. 83-84). Mother, who never specified the exact facts that were: (1) available
to CASA York before the fact-finding hearing; (2) not disclosed at the fact-
finding hearing; and (3) disclosed in CASA York’s report, sought to exclude
CASA York’s complete report. The trial court admitted CASA York’s report
over Mother’s objection.
[9] In May 2019, the trial court issued a written dispositional order, which ordered
Mother to complete a psychological evaluation. The order also provided that
DCS would locate and schedule a therapist for Mother that was consistent with
Mother’s list of preferred therapists even if the therapist was outside current
DCS contracts. The trial court also ordered DCS to continue to offer individual
therapy for K.F. Mother now appeals the dispositional order.
Decision
[10] At the outset, we note that Mother is not challenging the adjudication of her
son as a CHINS. She is also not challenging the services that the trial court
ordered her to complete. In fact, Mother concedes that the “CASA’s chosen
procedure in this matter did not result in a different set of ordered services or
programs, since [the] CASA essentially adopted the recommendations of DCS,
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and DCS simply relied on the evidence presented at the fact-finding.”
(Mother’s Br. at 230.
[11] Mother’s sole challenge is to the inclusion of specific facts in CASA York’s
report. At the dispositional hearing, Mother argued that the entire report
should be excluded from evidence. On appeal, however, she seeks only an
order to redact specific facts that she believes that CASA York had obtained
before the fact-finding hearing but did not disclose until the dispositional
hearing. Our review of Mother’s requested redaction includes information that
K.F.’s foster parents had given to CASA York regarding additional abuse that
he may have suffered at the hands of Mother. She seeks redaction of this
information not because she challenges its veracity but because she believes that
this information could potentially lead to the termination of her parental rights
in a possible future proceeding. Specifically, Mother argues that although “[t]o
some, such a remedy may seem trivial, but to a Mother yearning and working
to reunite with her son, such a remedy could be the difference between family
unity and termination.” (Mother’s Br. at 26).
[12] However, a court may not review an issue that is not ripe. Garau Germano, P.C.
v. Robertson, 133 N.E.3d 161, 167 (Ind. Ct. App. 2019). A claim is not ripe for
adjudication if it rests upon “‘contingent future events that may not occur as
anticipated, or indeed may not occur at all.’” Id. at 168 (citing Texas v. United
States, 523 U.S. 296, 300 (1988)). Here, DCS filing a petition to terminate
Mother’s parental rights is a contingent future event that may not occur at all.
Because Mother’s issue is not ripe for review, we dismiss the appeal.
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[13] Dismissed.
Robb, J., and Mathias, J., concur.
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