Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 24 2013, 5:38 am
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.
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
CATHERINE S. CHRISTOFF GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
Indianapolis, Indiana
THOMAS C. ALLEN
Fort Wayne, Indiana DAVID E. COREY
Deputy Attorney General
Indianapolis, Indiana
ROBERT J. HENKE
Indiana Department of Child Services
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF A.S.G., A.M.G., S.T.B., and A.G.B., )
Children Alleged to be Children in Need of Services, )
)
B.G., Mother, and S.B., Father, )
)
Appellants-Respondents, )
)
vs. ) No. 02A03-1304-JC-158
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Charles F. Pratt, Judge
The Honorable Thomas P. Boyer, Magistrate
Cause Nos. 02D08-1210-JC-446, 02D08-1210-JC-447,
02D08-1210-JC-448 and 02D08-1210-JC-449
September 24, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
S.B. (“Father”) and B.G. (“Mother”) (collectively “Parents”) appeal the trial
court’s order determining A.S.G., A.M.G., S.T.B., and A.G.B. to be children in need of
services (“CHINS”). Parents present a single issue for our review, namely, whether the
trial court erred when it admitted into evidence videotaped statements by A.S.G. and
A.M.G.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother has four children, A.S.G., born June 24, 2007; A.M.G., born August 22,
2008; S.T.B., born October 6, 2010; and A.G.B., born October 20, 2011 (collectively “the
children”). Father is the father of S.T.B. and A.G.B. The father of A.S.G. and A.M.G. is
not participating in this appeal. Following reports that Mother and Father were abusing
the children, and following a preliminary inquiry hearing on October 11, 2012, the trial
court found probable cause to believe that the children were CHINS and authorized the
Allen County Department of Child Services (“DCS”) to file its CHINS petitions. DCS
placed the children in foster care.
On November 5, DCS filed its amended verified petition alleging that the children
were CHINS. In particular, DCS alleged that Father had molested A.S.G. and A.M.G.
and that both Mother and Father used a belt “to inflict physical discipline on all of the
children.” Appellee’s App. at 6. On November 15, the trial court held an initial hearing
on the CHINS petitions, and the parents admitted to certain allegations and denied others.
The trial court set a factfinding hearing for February 19, 2013.
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On February 13, DCS faxed to parents’ attorneys its Petition for Hearing to
Introduce Child’s Statement/Videotape, which set out the statutory requirements of
Indiana Code Sections 31-34-13-2 through -4, as well as the nature of the statements
contained in the videotape to be introduced at the factfinding hearing. In particular, the
Petition stated as follows:
(a) The child [A.M.G.] stated to Jacob Lester (counselor, [case manager],
Police, etc.), the following:
i) [Father] touched her between her legs.
(b) The child [A.S.G.] stated to Julie DeJesus, forensic interviewer at the
Bill Lewis Center for Child Advocacy the following:
i) all children in the home getting “whooped” with a belt by
both [Mother] and [Father].
ii) being touched on her “coochie.”
(c) The child [A.M.G.] stated to Julie DeJesus, forensic interviewer at the
Bill Lewis Center for Child Advocacy the following:
i) all children in the home getting “whooped” with a belt by
both [Mother] and [Father].
ii) being touched on her “coochie” by [Father] with his hand
three different times. One time on the inside of her “coochie”
and the other two times on the outside of her “coochie.”
iii) that [A.M.G.] has a secret with her Mommy and that the
secret was that she was not supposed to talk about her
“coochie.”
Appellee’s App. at 20.
At the beginning of the factfinding hearing on February 19, Parents’ attorneys
objected to the admission into evidence of the videotaped statements of A.S.G. and
A.M.G. for DCS’s failure to comply with Indiana Code Section 31-34-13-4, which
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requires that DCS give parents notice of its intention to use a child’s videotaped
statements as evidence at least seven days prior to a proceeding. The trial court overruled
that objection and proceeded with the factfinding hearing. After taking the matter under
advisement, the trial court adjudicated the children to be CHINS. This appeal ensued.
DISCUSSION AND DECISION
Indiana Code Section 31-34-13-2 provides in relevant part that a statement or
videotape that is made by a child who at the time of the statement or videotape is less
than fourteen years of age, concerns an act that is a material element in determining
whether a child is a CHINS, and is not otherwise admissible in evidence under statute or
court rule, is admissible in evidence in a CHINS action if the requirements of Indiana
Code Section 31-34-13-3 are met.1 And Indiana Code Section 31-34-13-4 provides:
A statement or videotape may not be admitted in evidence under this
chapter unless the attorney for the department informs the parties of:
(1) an intention to introduce the statement or videotape in
evidence; and
(2) the content of the statement or videotape;
at least seven (7) days before the proceedings to give the parties a fair
opportunity to prepare a response to the statement or videotape before the
proceeding.
Here, the evidence shows that DCS faxed its petition to introduce into evidence
the children’s videotaped statements six days prior to the CHINS hearing instead of seven
days prior. Accordingly, at the beginning of the factfinding hearing, Parents’ attorneys
objected to the admission of the videotaped statements.
1
Parents do not dispute that the requirements of Indiana Code Section 31-34-13-3 are satisfied
here.
4
Parents suggest that they were denied due process as a result of DCS’ untimely
notice. A fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner. Hite v. Vanderburgh Co. OFC, 845 N.E.2d
175, 180 (Ind. Ct. App. 2006). Procedural irregularities in a CHINS proceeding may be
of such import that they deprive a parent of procedural due process with respect to a
potential subsequent termination of parental rights. In re J.Q., 836 N.E.2d 961, 966 (Ind.
Ct. App. 2005).
Parents’ sole contention on this issue is that they were prejudiced by the trial
court’s admission into evidence of the videotaped statements. But Parents do not make
any cogent argument suggesting that they were denied a fair hearing or the opportunity to
be heard in a meaningful manner. Parents merely contend that DCS’ failure to timely file
its notice of intent to introduce the videotaped statements into evidence requires reversal
as a matter of law. But it is well settled that error in the admission or exclusion of
evidence will not result in reversal on appeal “unless refusal to take such action appears
to the court inconsistent with substantial justice.” Ind. Trial Rule 61.
Parents have failed to allege or demonstrate that they were harmed in their efforts
to prepare for the factfinding hearing when DCS filed its notice of its petition one day
after such notice was due. First, as the trial court found, DCS provided copies of the
Intake Officer’s Report of Preliminary Inquiry and Investigation (“the Report”) to Parents
on October 30, 2012. The Report detailed the content of the statements A.S.G. and
A.M.G. gave during the videotaped interviews. Further, on January 14, 2013, DCS filed
its final witness and exhibit list, which listed the videotaped interviews as exhibits to be
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introduced at the hearing. Parents made no effort to obtain those recordings for review
through discovery prior to the factfinding hearing. And, importantly, Parents did not seek
a continuance of the factfinding hearing.
DCS’ statutory violation in this case is akin to a discovery violation. And in the
context of discovery violations, a continuance is the usual remedy; “[e]xclusion of the
evidence is an extreme remedy and is to be used only if the State’s actions were
deliberate and the conduct prevented a fair trial.” Berry v. State, 715 N.E.2d 864, 866
(Ind. 1999). Here, there is no suggestion that DCS’ actions were deliberate or that they
prevented a fair hearing. Parents make no argument regarding what they would have
gained by an additional day of notice, and they did not feel so prejudiced by the one day
deficiency that they moved for a continuance. Indeed, because they had notice of the
content of the videotaped statements and an opportunity to obtain copies of those
statements through discovery months before the factfinding hearing, under these facts and
circumstances, we hold that Parents were not denied a fair hearing, and that the trial
court’s admission of the evidence is not inconsistent with substantial justice.
Affirmed.
MATHIAS, J., and BROWN, J., concur.
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