CHINS: D.F. 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 Jun 12 2018, 8:57 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Aaron E. Haith Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHINS: June 12, 2018
Court of Appeals Case No.
32A01-1711-JC-2570
D.F.,
Appeal from the Hendricks
Appellant, Superior Court
v. The Honorable Karen M. Love,
Judge
Indiana Department of Child Trial Court Cause Nos.
Services, 32D03-1701-JC-2
32D03-1701-JC-3
Appellee.
Pyle, Judge.
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Statement of the Case
[1] D.F. (“Mother”) appeals the trial court’s order adjudicating S.J. and N.J. to be
Children in Need of Services (“CHINS”). Mother specifically argues that there
is insufficient evidence to support the adjudication. Concluding that the
Indiana Department of Child Services (“DCS”) presented sufficient evidence to
support the CHINS adjudication, we affirm the trial court.
[2] We affirm.
Issue
Whether there is sufficient evidence to support the CHINS
adjudication.
Facts
[3] The evidence most favorable to the CHINS adjudication reveals that Mother is
the parent of M.J., who was born in January 1999; S.J., who was born in
January 2001; and N.J., who was born in May 2002. The three children are
biological brothers who Mother adopted when they were toddlers. Mother is
the children’s biological great-aunt, and the children called her Aunt. D.
[4] In the early morning hours of December 29, 2016, M.J. was awakened by
Mother screaming and yelling that he had not washed the dishes the previous
night. Mother told M.J. that she would no longer pay his high school expenses.
M.J. told Mother that if she woke him again in a similar manner, he would
punch her in the face. Mother responded that “she was gonna . . . buy guns and
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try to kill all three [brothers].” (Tr. Vol. 1 at 103). After Mother had left for
work, M.J. washed the dishes and cleaned the house.
[5] Mother returned home from work that evening and telephoned the Avon Police
Department to report that her sons had threatened her that morning. Officer
Adam Barnhart (“Officer Barnhart”) was dispatched to Mother’s house. He
had previously been dispatched to Mother’s house several times for domestic
disputes reported by Mother. Each time he had arrived, the three young men
had been calm and respectful to him. Officer Barnhart, who also works as a
resource officer at Avon High School, had known the three young men to be
respectful to him and others at school as well.
[6] When Officer Barnhart arrived at Mother’s home on the evening of December
29, Mother told him that her sons were no longer welcome at her house and
that she wanted them to leave. However, she had no suggestions as to where
they could stay. M.J. suggested that the young men could stay with their
football coach and his wife. Officer Barnhart contacted the coach’s wife, who
said that the three young men were welcome in the coach’s home. As the
young men were leaving Mother’s home, she told them to give her their cell
phones. Officer Barnhart took the young men to their coach’s house and told
the coach to contact Mother within a few days to see if the young men were
able to return home.
[7] In early January 2017, Officer Barnhart returned to Mother’s house and learned
that Mother had contacted DCS and was still refusing to allow her sons to
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return home. DCS Caseworker Laveta Carney (“Caseworker Carney”) also
visited Mother that same day and asked her why her sons could not return
home. Mother simply said that the young men were no longer welcome in her
home. She also did not want them staying at their coach’s house. Instead, she
wanted them to leave Avon and be sent to Texas to live with their biological
father’s relatives. Mother warned Caseworker Carney to take a law
enforcement officer with her when she went to speak with her sons because the
young men were aggressive. However, when Caseworker Carney arrived at the
coach’s home to speak with the young men, they were all very polite.
[8] Two days later, DCS filed petitions alleging that M.J., S.J., and N.J. were
CHINS. The trial court held a hearing on the petitions in April 2017. At that
time, M.J. had turned eighteen and had been dismissed from the case. The
hearing proceeded on the status of S.J. and N.J.
[9] Testimony at the hearing revealed that S.J. had previously overheard Mother
tell her sister to bring over a gun because she was going to kill everyone. S.J.
testified that he frequently came home from football workouts to find no food
in the home and that Mother had told him that he was on his own. N.J.
testified that Mother had withheld food as punishment and had tried to break
his computer by throwing it across the room. N.J. had also returned home to
find the front door locked. He had spent the night in a car without food and
had drunk water from the hose attached to the side of the house. According to
N.J., Mother’s home was “not a safe environment, [she was] always yelling,
cussing or fighting.” (Tr. Vol. 1 at 182). Mother had told both young men that
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they would not be successful and she had failed to show them any affection or
love.
[10] In addition, DCS Family Case Manager Chyane Hone (“Case Manager Hone”)
testified that she had offered services, such as individual and family counseling,
to Mother to reunify her with her sons. However, Mother had told Case
Manager Hone that she did not want her sons to return to her home and that
she would not participate in any services. The young men were both
participating in individual therapy, and the football coach and his wife were
attending services as recommended by the young men’s therapist. At the time
of the hearing, Mother had not seen her sons since they had left her home in
December 2016.
[11] Following the hearing, the trial court issued a detailed nineteen-page order that
included one hundred and thirty-one findings and concluded as follows:
DCS has proven, by a preponderance of the evidence, that [S.J.]
and [N.J.]’s physical and mental health is seriously endangered
because of Mother’s refusal to supply the child[ren] with
necessary food, shelter, and supervision and counseling. DCS
proved by a preponderance of the evidence, that the coercive
intervention of the Court is necessary on the date of the fact-
finding hearing.
(App. 105). Mother appeals the trial court’s adjudication that her sons are
CHINS.
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Decision
[12] Mother argues that there is insufficient evidence to support the CHINS
adjudication. When determining whether there is sufficient evidence to support
a CHINS determination, we consider only the evidence most favorable to the
judgment and the reasonable inferences to be drawn therefrom. In re S.D., 2
N.E.3d 1283, 1287 (Ind. 2014). This Court will not reweigh the evidence or
reassess the credibility of the witnesses. Id. at 1286. Where, as here, a juvenile
court’s order contains specific findings of fact and conclusions of law, we
engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App.
2014). First, we determine whether the evidence supports the findings, and
then, we determine whether the findings support the judgment. Id. Findings
are clearly erroneous when there are no facts or inferences to be drawn
therefrom that support them. Id. A judgment is clearly erroneous if the
findings do not support the juvenile court’s conclusions or the conclusions do
not support the resulting judgment. Id. We further note that, as a general rule,
appellate courts grant latitude and deference to trial courts in family law
matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). “This
deference recognizes a trial court’s unique ability to see the witnesses, observe
their demeanor, and scrutinize their testimony, as opposed to this court’s only
being able to review a cold transcript of the record.” Id.
[13] As a preliminary matter, we note that Mother challenges none of the trial
court’s findings. As a result, she has waived any argument relating to whether
these unchallenged findings are clearly erroneous. See McMaster v.
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McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (explaining that
unchallenged trial court findings are accepted as true). We now turn to the
substantive issues in this case.
[14] A CHINS proceeding is a civil action. In re N.E., 919 N.E.2d 102, 105 (Ind.
2010). Therefore, DCS must prove by a preponderance of the evidence that the
child is a CHINS as defined by the juvenile code. Id. INDIANA CODE § 31-34-
1-1 provides that a child is a CHINS if, before the child becomes eighteen (18)
years of age:
(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 the 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.
[15] A CHINS adjudication focuses on the child’s condition rather than the parent’s
culpability. In re N.E., 919 N.E.2d at 105. The purpose of a CHINS
adjudication is to provide proper services for the benefit of the child, not to
punish the parent. Id. at 106. A CHINS adjudication in no way challenges the
general competency of parents to continue relationships with their children. Id.
at 105.
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[16] Here, Mother argues that there is insufficient evidence to support the CHINS
adjudication. Specifically, she first argues that the testimony of S.J. and N.J. is
incredibly dubious. Within the narrow confines of the incredible dubiosity rule,
a court may impinge upon a jury’s function to judge the credibility of a witness.
Dallas v. Cessna, 968 N.E.2d 291, 298 (Ind. Ct. App. 2012). However, the rule
does not apply in civil proceedings. Id. at 299. Mother’s argument therefore
fails.
[17] Mother also contends as follows:
[DCS] failed to prove by a preponderance of the evidence that
the children were in need of services as charged. The evidence
did not reasonably support a theory that the children’s physical
or mental condition was either seriously impaired or endangered
as a result of [Mother’s] inability, refusal or neglect or that the
children were not provided ample food, clothing, shelter, medical
care, education or supervision. The children needed services
which were not offered by DCS to [Mother]. Though the same
would have been provided with the aid of DCS and did not
require the coercive intervention of the court.
(Mother’s Br. 15).
[18] However, Mother has waived appellate review of this issue because she has
failed to support it with cogent argument and relevant authority. See Kentucky
Nat’l. Ins. Co. v. Empire Fire and Marine Ins. Co., 919 N.E.2d 565, 598 (Ind. Ct.
App. 2010) (holding that argument was waived for failure to cite authority or
provide cogent argument).
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[19] Waiver notwithstanding, we find no error. Our review of the evidence reveals
that Mother failed to provide for her son’s basic needs of food, shelter, and
supervision. She has not allowed them to return home since she kicked them
out of her house in December 2016. She has also been emotionally abusive to
her children and threatened them with physical abuse, including death. In
addition, she has refused to participate in counseling or any other DCS-referred
services. This evidence is sufficient to support the CHINS determination.
[20] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
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