T.D., and Ti. D. alleged to be CHINS and T.D. (father) v. Dearborn Co. Dept. of Child Services

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Nov 13 2014, 10:00 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
JENNIFER A. JOAS GREGORY F. ZOELLER
Joas & Stoats Attorney General of Indiana
Madison, Indiana
CHRISTINA D. PACE
ROBERT J. HENKE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
T.D., a child in need of services, Ti. D., a child in )
need of services, )
)
T.D., father, )
)
Appellant-Respondent, )
)
vs. ) No. 15A05-1403-JC-116
)
DEARBORN COUNTY DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE DEARBORN CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause Nos. 15C01-1308-JC-28 and 1308-JC-29
November 13, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Th.D. (“Father”) appeals the finding that his children are children in need of services
(“CHINS”). We affirm.
Issue
The issue before us is whether there is sufficient evidence that Father’s children are
CHINS.
Facts
In the summer of 2013, C.D. (“Mother”) and Father separated and began the process
of divorcing, and matters became highly acrimonious.1 Both parties obtained protective
orders against the other. On July 19, 2013, Father contacted the Department of Child
Services (“DCS”) to report that Mother was physically abusing their children, T.D. and
Ti.D., and using drugs in the house. T.D. was eleven at the time, and Ti.D. was eight. The
children told a DCS caseworker that they were afraid of Mother and described an incident
in which Mother hit Ti.D. over the head with a hairbrush, causing it to break. Ti.D. also
told of once being whipped with a belt by Mother. The children also said they had
witnessed Mother smoking marijuana and that they felt safe with Father, but not Mother.
Shortly after the initial DCS report, the children attempted to run away from Mother’s
house. DCS was considering placing the children with Father, but it did not do so after
1
The current status of the divorce case is unclear. There was some mention in the record that that case has
been put on hold pending resolution of this CHINS action.
2
Father was arrested in early August on an invasion of privacy charge for allegedly violating
the protective order Mother had against him. Father also has a 2011 arrest for physically
abusing a stepchild, a claim that DCS substantiated. Mother has two theft and two battery
convictions and apparently was facing a conversion charge for shoplifting at the time the
children were removed. At some point—precisely when is unclear—Mother accused
Father of raping her, but he was not immediately arrested after the accusation was made.
On August 5, 2013, the Aurora Police Department searched Mother’s residence and
found K2, or synthetic marijuana. T.D. said that the substance belonged to Mother.
Thereafter, the children were removed from Mother’s care and placed in a foster home. At
the time of removal, both children were in “excellent” physical health and had no mental
health issues, aside from Ti.D. having been previously diagnosed with ADHD. App. pp.
30-31. Ti.D. was being treated for her ADHD with medication originally obtained by
Mother and Father. After being placed in foster care, the foster parents noted hoarding-
type behaviors by Ti.D. Ti.D. also sometimes hit herself on the head when upset or
stressed.
The trial court authorized the DCS to file a CHINS petition and originally scheduled
a fact-finding hearing for August 27, 2013. After several continuances, the CHINS fact-
finding hearing did not begin until December 20, 2013, and then was continued to January
27, 2014.
Between the filing of the CHINS petition and the completion of the CHINS hearing,
the children continued to reside in foster care. During this several-month time frame,
Mother underwent individual counseling and was released after successfully completing it.
3
Mother also was on medication for depression/anxiety and seizures. Mother and Father
each underwent a number of drug tests. All of Mother’s tests were negative for any illicit
substances. All of Father’s tests likewise were negative, except for one test suggesting he
had taken more than his therapeutic dosage of Oxycodone, for which he had a prescription.
Father had visitation with the children that was supervised by Chuck Satterfield,
who also provided parental counseling to Father. Satterfield said that Father initially was
reluctant in August 2013 to engage in supervised visitation, but he had changed his mind a
week later and regularly had visitation thereafter. Satterfield only had one concern
regarding Father’s visitation with the children, and that was his occasional negative
comments about Mother to the children. Satterfield would redirect Father from making
such comments; as time passed, Father improved in this regard. Otherwise, Satterfield had
no concerns about Father’s visitations or his care of the children, finding him and the
children to be affectionate and to have a good time together. Satterfield also believed
Father corrected the children appropriately and did not witness any inappropriate behavior
by him.
Mother’s visitation originally was supervised by Aimee Steele, until mid-August
2013. Steele had some concerns about visitation because of what the children had reported
regarding abuse by Mother, but she did not personally observe anything of that nature.
Steele also observed some early visits by Father and had no concerns, except for one visit
during which Father initially asked T.D. not to cooperate with DCS, but by the end of the
visit Father was urging T.D. to cooperate.
After Steele left the case, Mother’s visitation was supervised by Leslie Cooper, who
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also worked with Mother individually. Cooper reported that the visitations always went
well, that the children were excited to see Mother, and that they were affectionate with
each other. Cooper also said that Mother was very open and receptive to Cooper’s
parenting advice. Cooper did state that T.D. in particular initially was somewhat hesitant
to see Mother but had gotten better over time. Cooper also said that the children were
affected by their parents’ acrimonious divorce. Cooper had visited Mother’s house and
had no safety concerns if the children were to stay with her.
Allison Fields was the DCS caseworker assigned to this case. Fields said that both
children had been undergoing counseling and were benefitting from it; however, she also
expressly said that she believed that the children would continue receiving counseling and
other services even if DCS was not involved and that the parents could afford such services,
particularly because the children were covered by Medicaid. Still, Fields believed
continued DCS involvement in the case was warranted because of fears that Mother and
Father would place the children in the middle of their contentious relationship and divorce.
Fields also expressly said that she would have no concerns if the children were to live with
Mother. She had no physical safety concerns if the children were to live with Father but
had some concerns about Father’s animosity toward Mother and saying negative things
about her to the children. Fields also noted that the children had learned about the rape
accusation Mother had made against Father and that it was inappropriate for them to know
about it, but she did not know how the children had learned about it. Fields also discussed
the fact that Mother had completed an individual counseling program but Father had not
despite DCS’s recommendation that he do so.
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Mother and Father both testified at the second CHINS hearing. By that time, Mother
was having unsupervised as well as supervised visitation. Mother agreed that the children
were benefitting from the counseling they were receiving that had been arranged through
DCS and that they should continue receiving counseling. Mother did not admit that the
children were CHINS, however. Father seemed less enthusiastic about DCS’s continued
involvement in his children’s lives but was not opposed to continued counseling.2
On February 7, 2014, the trial court entered an order finding that the children were
CHINS. The trial court made a limited number of sua sponte findings, related primarily to
the children’s initial removal from Mother’s care in August 2013 and the parties’
contentious divorce. The trial court then conducted a dispositional hearing on February
21, 2014. Sometime after the second CHINS hearing and before the dispositional hearing,
Father apparently had been charged with raping Mother, based on her previous accusations,
and he was in jail awaiting trial. On February 26, 2014, the trial court entered a
dispositional order requiring the children to remain in foster care. Father now appeals;
Mother has not appealed.
Analysis
Father challenges the CHINS determination; he does not directly or separately
challenge the dispositional order. When reviewing a trial court’s CHINS determination,
2
Included in the volume of exhibits is a report prepared by the guardian ad litem in early November 2013.
Although the parties state this report was filed with the trial court, such filing is not indicated in the CCS.
Additionally, the report is located in the volume of exhibits after an unrelated document, handwritten by
Mother, that was introduced into evidence by DCS at the January 27, 2014 hearing. Mother objected to
introduction of that document, which was overruled, and that document was discussed at the CHINS
hearing; the guardian ad litem report was not mentioned or discussed. It is unclear to us how or why the
report is in the volume of exhibits.
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we neither reweigh the evidence nor judge witness credibility. In re S.D., 2 N.E.3d 1283,
1286 (Ind. 2014). Rather, we must consider only the evidence supporting the trial court’s
decision and the reasonable inferences drawn therefrom. Id. at 1287. The trial court here
also entered limited sua sponte findings. Such findings are not required for a CHINS fact-
finding order, though they are required for a CHINS dispositional decree. Id. (citing Ind.
Code § 31-34-19-10). As to issues covered by the findings, we analyze whether the
evidence supports the findings and whether the findings support the judgment. Id. As for
issues upon which there are no findings, we review them under the general judgment
standard, meaning we will affirm if the judgment can be sustained on any legal theory
supported by the evidence. Id.
Although we must, of course, give substantial deference to a trial court’s fact-
finding role in CHINS cases, we also keep in mind that because “a CHINS adjudication
may have long-lasting collateral consequences for [a] family,” such an adjudication must
be reserved for families who cannot meet a child’s needs, “not those who merely have
difficulty doing so.” Id. at 1285. Because “[e]very CHINS proceeding ‘has the potential
to interfere with the rights of parents in the upbringing of their children,’” we must ensure
that a CHINS determination has not unduly interfered with those rights. In re K.D., 962
N.E.2d 1249, 1258 (Ind. 2012) (quoting In re N.E., 919 N.E.2d 102, 108 (Ind. 2010)).
“‘[F]orcing unnecessary requirements upon parents whose children have been adjudicated
as CHINS could set them up for failure with the end result being not only a failure to
achieve the goal of reunification, but potentially, the termination of parental rights.’” Id.
(quoting A.C. v. Marion County Dep’t of Child Servs., 905 N.E.2d 456, 464-65 (Ind. Ct.
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Ohio App. 2009) (citing I.C. § 31-34-16-4)). Additionally, in making a CHINS determination,
a trial court should consider the family’s condition not just when the case was filed, but
also when it is heard. S.D., 2 N.E.3d at 1290.
There are a number of grounds in Indiana Code Chapter 31-34-1 upon which a child
may be found to be a CHINS. The DCS here specifically alleged that the children were
CHINS under Indiana Code Section 31-34-1-1, which states:
A child is a child in need of services 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 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.
Our supreme court has paraphrased a “CHINS 1” finding under this statute as requiring
three basic elements: “that the parent’s actions or inactions have seriously endangered the
child, that the child’s needs are unmet, and (perhaps most critically) that those needs are
unlikely to be met without State coercion.” Id. at 1287. “Not every endangered child is a
child in need of services, permitting the State’s parens patriae intrusion into the ordinarily
private sphere of the family.” Id. The State bears the burden of proving the elements of a
CHINS action by a preponderance of the evidence. K.D., 962 N.E.2d at 1253.
We also note that, although the CHINS petition made no allegations regarding
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Father, “a separate analysis as to each parent is not required in the CHINS determination
stage.” N.E., 919 N.E.2d at 106. Because the purpose of a CHINS adjudication is to protect
children and their best interests, not to punish parents, one parent’s conduct can be enough
to support such an adjudication. Id. However, each parent has a right to challenge DCS’s
proof as to whether his or her child is a CHINS. K.D., 962 N.E.2d at 1254. Even if one
parent admits to a CHINS determination, such admission is not automatically binding on
the other parent, who may demand a fact-finding hearing despite the other parent’s
admission. See id. at 1256-57. Here, Mother did not admit to the allegations in the CHINS
petition, nor did she concede that the children were CHINS, even if she agreed that they
were benefitting from counseling obtained through DCS. It is true that Mother has not
challenged the CHINS finding on appeal. Still, under the circumstances, we do not believe
this affects Father’s ability to challenge the CHINS finding on his own.
Regarding the trial court’s limited findings in this case, it made several findings
related to events in July or early August 2013, such as the discovery of K2 in Mother’s
residence, physical abuse by Mother against the children, attempts to run away from home
by the children, and Father’s arrest for invasion of privacy. The trial court also noted the
“extremely strained” relationship of Mother and Father and that they had “placed the
children in the middle of their contentious relationship.” App. pp. 119-20. The trial court
also noted that Ti.D. had some continuing emotional issues, such as hoarding and hitting
herself when stressed, and that both children would benefit from continued counseling and
related services. As noted by DCS, Father does not directly challenge any of these findings.
These findings do not specifically address any of the three “CHINS 1” elements: that the
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parent’s actions or inactions have seriously endangered the child, that the child’s needs are
unmet, and that those needs are unlikely to be met without State coercion. See S.D., 2
N.E.3d at 1287. There is no requirement that a trial court make such findings sua sponte.
Id. at 1288.3
We acknowledge the evidence here that for the most part, both Mother and Father
have been cooperative with DCS during the pendency of this CHINS case. Still, DCS
legitimately expressed concern that without its ongoing involvement, the children will
continue to be caught in the middle of Mother and Father’s acrimonious relationship.
Indeed, the evidence most favorable to the trial court’s ruling is that the relationship was
poised only to become even more acrimonious. It is undisputed that shortly after the
CHINS order and before the dispositional order, Father was criminally charged with raping
and sexually assaulting Mother. At the time of the dispositional hearing he was
incarcerated as a result of the charges. It is reasonable to presume that such charges, of
which the children had somehow become aware, and the legal proceedings to follow can
only have a substantial negative impact on the children, as well as each parent’s ability to
care for the children’s needs. Also, such charges, pitting Mother against Father, place the
level of discord in this family well above that which may be found in a more “typical”
acrimonious divorce. Keeping in mind our standard of review and that we cannot reweigh
the evidence, we conclude there is sufficient evidence that the children are CHINS because
they are seriously endangered, their needs are unmet, and their needs are unlikely to be met
3
It is helpful for a trial court to make such findings if there is any evidence to support them. See S.D., 2
N.E.3d at 1288.
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without DCS involvement or State intervention.
Conclusion
We affirm the determination that T.D. and Ti.D. are CHINS.
Affirmed.
BRADFORD, J., and BROWN, J., concur.
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