In re the Matter of L.D., E.Z, and C.Z. (Minor Children) and B.Z. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 22 2020, 10:36 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
C. Matthew Zentz Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Monika Prekpa Talbot
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Matter of L.D., E.Z, June 22, 2020
and C.Z. (Minor Children) and Court of Appeals Case No.
20A-JC-9
B.Z. (Father),
Appeal from the Marion Superior
Appellant-Respondent, Court
v. The Honorable Mark A. Jones,
Judge
Indiana Department of Child The Honorable Rosanne Ang,
Services,1 Magistrate
Appellee-Petitioner. Trial Court Cause Nos.
49D15-1905-JC-1237
1
DeDe K. Connor filed an appearance on behalf of Appellee-Guardian ad Litem, Child Advocates, Inc., but
did not file a brief on appeal.
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49D15-1905-JC-1238
49D15-1905-JC-1239
Mathias, Judge.
[1] B.Z. (“Father”) appeals the Marion Superior Court’s order adjudicating his
three minor children as Children In Need of Services (“CHINS”). B.Z. raises
three arguments:
I. Whether the trial court abused its discretion when it admitted into
evidence L.D.’s statements to the family case manager (“FCM”);
II. Whether clear and convincing evidence supports the trial court’s findings;
and,
III. Whether the Department of Child Services (“DCS”) proved by a
preponderance of the evidence that the children are CHINS.
[2] We affirm.
Facts and Procedural History
[3] In May 2019, law enforcement officers responded to a report of domestic
violence at Father’s home. Father fled the home before officers arrived. K.Z.
(“Mother”) was present with her three children, five-year-old L.D., four-year-
old E.Z., and two-year-old C.Z. Father is L.D.’s stepfather and E.Z. and C.Z.’s
biological father. L.D. told the officers that he saw Father choke Mother and
put a knife to her throat.
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[4] A DCS family case manager interviewed L.D. on May 10, 2019. L.D. stated
that he did not feel safe in his home because Father is mean. He reported that
Father is violent and “smacks” his siblings. Appellant’s App. p. 21. The family
case manager also spoke to E.Z. who told her that “Daddy smacks Mommy”
and “Daddy is angry to Mommy.” Id. E.Z. also stated that “daddy is a
dragon.” Id. The family case manager observed that two-year-old C.Z. was dirty
and smelled of marijuana.
[5] Mother told the family case manager that Father is violent and held a knife to
his own throat. She stated that Father struggles with bipolar disorder. Father
admitted that he “has tried to slice his own neck open in front of the children.”
Id. He also admitted to using cocaine and marijuana. Both parents refused to do
an instant drug screen.
[6] Both parents had prior unsubstantiated DCS history concerning a domestic
violence allegation in June 2018. And Father had a prior substantiated DCS
history for physical abuse against E.Z. Father slapped E.Z. when she woke
Father up resulting in bruising to E.Z.’s face.
[7] As a result of DCS’s investigation, the children were removed from Mother’s
and Father’s care. On May 13, 2019, DCS filed a petition alleging that the
children were CHINS as defined in Indiana Code section 31-34-1-1. DCS
alleged that parents had not provided the children “with a safe, stable, and
appropriate living environment free from substance abuse and domestic
violence.” Id. at 33.
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[8] The initial hearing was held on May 14, 2019. Father appeared in person and
by counsel. Mother appeared in person and requested appointed counsel. Both
parents denied the allegations in the CHINS petition. The trial court ordered
the continued removal of the children from parents’ home and ordered
supervised parenting time. The children were placed in relative care on or about
June 6, 2019.
[9] On August 1, 2019, Mother admitted that the children were CHINS and
waived her right to a fact-finding hearing.2 Father continued to contest DCS’s
allegations. Father also argued that DCS obtained L.D.’s statement without
parental permission, violating his Fourth Amendment rights. On August 8 and
September 5, 2019, the trial court held child hearsay and fact-finding hearings.
[10] At the August 8 hearing, L.D. testified that he saw Father and Mother fight a
“couple times.” Tr. p. 55. He said he did not see Father hit Mother and was not
afraid of his parents. Id. at 55–56. Father stated that he suffers from depression
and he was planning to go to a doctor soon to get medication for his depression
and anxiety. Id. at 59. Father admitted to using marijuana but stated he did so
while he lived in Michigan and a doctor prescribed it for him. Id. at 59, 63.
Father was not employed on the date of the hearing and had lost his home.
Father planned to move into his mother’s home.
2
Mother actively participated in services provided by DCS. On October 7, 2019, the trial court issued an
order allowing Mother unsupervised visitation and a temporary trial visit with the children.
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[11] The family case manager testified that Mother reported several incidents of
domestic violence between herself and Father. Id. at 73. Father also admitted to
the family case manager that he held a knife to his throat while the children
were in the home. Father told the case manager that he used cocaine and
marijuana. When the case manager interviewed Father, his behavior was
erratic, and he was screaming for his mother. Id. at 75.
[12] DCS made referrals for Father for supervised visitation, a domestic violence
and substance abuse assessment, home-based case management and individual
therapy. Prior to the August 8 hearing, Father had not participated in therapy.
DCS did not believe that he was able to take care of the children on his own
without his mother’s assistance. Id. at 95. The family manager expressed the
following concerns about Father’s ability to care for the children:
The kids don’t have a home that’s able to be maintained by either
mother or father. I don’t feel like his mental health issues have
been addressed through therapy as well as case management has
not progressed. I haven’t seen accomplishments of any type of
plan that’s been set forth between the home-based case manager
and [Father].
Id. at 96.
[13] The guardian ad litem (“GAL”) believed that there was an ongoing need for the
Court’s continued involvement with the family because of Father’s mental
health issues and domestic violence concerns that still needed to be addressed.
Tr. pp. 116–17. The GAL also testified that L.D. told her that “he does not feel
safe with his dad because his dad hurts his mom.” Tr. p. 123.
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[14] The home-based counselor testified that Father communicated and cooperated
with her, and she was encouraging him to find employment. She also believed
that Father would attend therapy on his own without court intervention. Id. at
88. The visitation supervisor testified that she did not observe any safety
concerns during the visits between Father and the children. Tr. p. 144. She also
stated that she had no concerns with Father living with the children in paternal
grandmother’s home. Tr. p. 145.
[15] Father’s drug screens for the three weeks preceding the fact-finding hearing
were negative. Father also filed a petition to dissolve his marriage to Mother.
[16] On October 4, 2019, the trial court adjudicated the children as CHINS. The
trial court entered the following findings to support its adjudication:
6. In late-April or early-May of 2019 and while the children were
present, [Father and Mother] were involved in an altercation
which involved a knife.
7. At the time of DCS’ assessment, [L.D.] indicated that [Father]
held the knife to his mother’s throat. [Father] indicates that he
held the kitchen knife to his own throat during this altercation.
8. Immediately following the incident involving the knife,
[Mother] took [L.D., E.Z., and C.Z.] to the home of a neighbor
and contacted the police.
9. Jessica Janke, an assessment family case manager with the
Department of Child Services, was assigned to assess the safety
of the . . . children due to this incident.
10. During FCM Janke[’s] interview of [Father], she observed his
behavior to be erratic. [Father] was screaming and yelling for his
mother.
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11. At the time of DCS’ assessment of the April/May incident,
[L.D.] did not feel safe in his home due to [Father]. [L.D.] felt
that his mother was only safe when she is at work, because she is
safe from [Father] there.
12. [Father] has been physically abusive to [Mother] in the
presence of the children. [Mother] told FCM Janke of several
incidents of violence perpetrated by [Father] that were not
reported to the police and [L.D.] has observed his mother and
[Father] to “fight pretty much every day.” [L.D.] provided some
detail regarding the violence and stated that [Father] will “grab
Mom’s shirt and smack her.” [L.D.] has also indicated that he “is
supposed to call Nana on the [tablet] so that Nana can come get
us when mom and dad fight.”
13. [Father] has substantiated history with the Department of
Child Services due to smacking [E.Z.] in the face when she was
three years of age. [Father] was criminally charged for this
incident.
14. [Father] struggles with depression and anxiety. When this
action was filed, [Father] was using marijuana in an attempt to
address his depression. [Father] also admitted to the use of
cocaine to FCM Janke during her assessment.
15. On August 8, 2019, [Father] testified that he would be going
to a doctor “soon” to get medication for depression and anxiety.
16. On September 5, 2019, [Father’s] mother testified that
[Father] had attended five or six appointments with a
psychologist.
17. [Mother] and [Father] have intermittently maintained their
relationship since this matter was filed.
18. [The children’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
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care, education, or supervision. According to [L.D.], [Father]
held a knife to [Mother’s] throat during an altercation in late-
April or early-May. According to [Father], [Father] held a knife
to his own throat during the altercation. The Court finds that the
history of domestic violence in conjunction with either of these
singular events places the children’s physical and mental
condition in danger. As the testimony of [L.D.] and Father did
not conflict, the Court notes that both events could have occurred
that evening. [Father] is physically abusive to [Mother] in the
presence of the children. [Father] has been physically abusive to
[E.Z.] in the past. [Father and Mother] have not completely
ceased their relationship. [L.D.] does not feel safe in his home
due to the actions of [Father]. [Father] needs mental health
treatment that he did not begin to receive until after the first day
of fact-finding in this matter. The totality of circumstances
indicates that the home environment of the [] family is one of
violence and untreated mental health, which places the children’s
physical and mental condition at risk.
19. [The children] need care, treatment, or rehabilitation that
they are not receiving and is unlikely to be provided or accepted
without the coercive intervention of the Court. Despite [Father’s]
struggle with depression and anxiety and his actions of self-harm,
he did not seek treatment until four months after this matter was
filed. The coercive intervention of the Court is necessary to
compel [Father’s] continued compliance in treatment.
Appealed Order pp. 1–2.
[17] The court held a dispositional hearing and issued a parental participation order
on October 31, 2019. Father now appeals.
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Standard of Review
[18] When a juvenile court makes findings in a CHINS case, our review is governed
by Indiana Trial Rule 52, which states that “the court on appeal shall not set
aside the findings or judgment unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A); In re T.S., 906 N.E.2d 801, 804 (Ind. 2009).
As to the issues covered by findings, we apply a two-tiered analysis, considering
first whether the evidence supports the findings and then whether the findings
support the judgment. T.R. 52(A); In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).
Findings are clearly erroneous when there are no facts or inferences drawn
therefrom that support them. In re T.S., 906 N.E.2d at 804. 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 do not
reweigh the evidence or judge the credibility of witnesses but view the evidence
and its reasonable inferences most favorably to the judgment. In re K.D., 962
N.E.2d 1249, 1253 (Ind. 2012).
I. Admission of L.D.’s Statements
[19] Father argues that the trial court violated his due process rights when it
admitted at the fact-finding hearing statements five-year-old L.D. made to the
family case manager. Specifically, Father claims that the “trial court’s decision
to allow child hearsay statements [is] clearly erroneous as the child displayed no
indication of reliability. The trial court’s decision to allow child hearsay
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statements gained by an impermissible interview is a violation of Father’s due
Process Rights.” Appellant’s Br. at 9.
[20] The Due Process Clause protects freedom of personal choice in family life
matters. In re T.H., 856 N.E.2d 1247, 1250 (Ind. Ct. App. 2006); see also E.P. v.
Marion Cty. Office of Family & Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App.
1995) (“Indeed, the courts of this state have long and consistently held that the
right to raise one’s children is essential, basic, more precious than property
rights, and within the protection of the Fourteenth Amendment[.]”). This
includes a parent’s fundamental right to raise his or her child without undue
interference by the state. In re T.H., 856 N.E.2d at 1250. The right is not
unlimited, however, and the State has the authority under its parens patriae
power to intervene when parents neglect, abuse, or abandon their children. Id.
[21] In this case, the family case manager interviewed L.D. concerning the domestic
violence occurring between L.D.’s parents in their home. The interview was
authorized under Indiana Code section 31-33-8-7(b)(2). There is nothing in the
record to suggest that Mother or Father objected to the family case manager’s
interview with L.D. or attempted to withhold consent to interview the child.
Moreover, after reviewing the record, it is reasonable to infer that Mother
allowed the family case manager to interview L.D.
[22] At the child hearsay hearing, Father argued that DCS did not request
permission to interview L.D., violating his due process and Fourth Amendment
rights. DCS argued that parental consent was not required due to exigent
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circumstances of the domestic violence investigation. Tr. p. 10. The trial court
rejected Father’s argument. At the fact-finding hearing, Father objected to the
admission of L.D.’s statements on hearsay grounds but did not raise his due
process arguments. Tr. p. 48. In his brief, Father does not cite to pertinent
authority or cogently argue that L.D.’s statements to the family case manager
constitute inadmissible hearsay.
[23] Father relies solely on Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) and argues only
that “[t]he statements relied upon by the court are a violation of Father’s Due
Process Rights and may not be used as the basis for a CHINS finding.”
Appellant’s Br. at 12. Heck involved the Bureau of Milwaukee Child Welfare’s
investigation of corporal punishment against a third-grade student as a form of
discipline at a private Christian school. During the investigation, a caseworker
interviewed the child, who described the spankings and resulting injury and
discussed possible injury to another student as a result of corporal punishment.
[24] The caseworker decided to interview the second student, Doe, but did not
notify Doe’s parents that the caseworker intended to interview him. The
caseworker believed she had statutory authority to interview Doe at his school
without a court order or the consent of his parents or the school. Id. at 502. The
school challenged the caseworker’s authority to interview Doe without a court
order. Local law enforcement agreed with the caseworker’s assertion that she
had authority to interview Doe, and the school eventually allowed Doe to be
interviewed.
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[25] Doe’s parents, individually and on behalf of Doe, filed a 42 U.S.C. § 1983
action against the caseworkers for violating their Fourth Amendment rights,
right to familial relations, and due process rights. The Seventh Circuit
concluded that the plaintiffs adequately alleged claims for illegal search, illegal
seizure, and violation of the right to familial relations. Therefore, the court
considered whether those deprivations occurred without due process of law. Id.
at 526. Referencing the court’s previous discussion concerning the caseworker’s
failure to follow the Bureau’s policies for investigating claims of abuse, the
court concluded that
the plaintiffs have stated claims against the defendant for
violating their right to procedural due process by: (1) failing to
obtain a warrant or court order before searching Greendale’s
premises and seizing John Doe Jr.; (2) interrogating John Jr.
without first notifying his parents and obtaining their consent;
and (3) investigating the plaintiff parents for child abuse and
threatening to remove the Does’ children from their custody
without definite and articulable evidence giving rise to a
reasonable suspicion that the plaintiff parents had abused their
children or that the children were in imminent danger of being
abused.
Id. at 527.
[26] Heck is legally, factually, and procedurally distinct from the circumstances in
this case. Father does not support his citation to Heck with any reasoning as to
why Heck supports his claim that his due process rights were violated when the
trial court admitted L.D.’s statements into evidence. Because he failed to cite
relevant authority and provide cogent reasoning to support any of his claims,
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we conclude that Father has waived his challenge to the admission of L.D.’s
statements at the fact-finding hearing. See Ind. Appellate Rule 46(A)(8)(a).
II. Findings of Fact
[27] Father also contends that the following factual findings are not supported by the
evidence: 1) that he and Mother have maintained a relationship since June
2019; 2) that the family home is one of violence; and 3) that Father did not seek
mental health treatment until four months after the CHINS proceedings
commenced.
[28] We agree that on the dates of the fact-finding hearing, Mother and Father were
no longer involved in a romantic relationship. Mother moved out of the marital
home at the beginning of June 2019, and Father filed for divorce in July 2019. It
is possible that Mother and Father briefly reunited before Father filed for
divorce, Tr. pp. 135–36, but there is nothing in the record to suggest that they
maintained their relationship after the divorce petition was filed.
[29] But there was clear and convincing evidence to support the trial court’s finding
that the family home was a violent environment. Mother, L.D., and E.Z. all
discussed domestic violence in the home with the family case managers. And
Father admitted to the case manager that he held a knife to his neck while the
children were present.
[30] There was also clear and convincing evidence to support the trial court’s finding
that Father did not seek mental health treatment for the first four months of
these proceedings. DCS removed the children from Father’s home in May.
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Father admitted to mental health issues when the CHINS investigation began.
The fact-finding hearing commenced on August 8, 2019. Father testified at that
hearing that he had not received treatment but had an appointment scheduled
with a doctor. When the fact-finding hearing concluded on September 5, 2019,
Father’s mother testified that Father had started treatment with a psychologist.
Tr. pp. 134–35. This evidence supports the trial court’s finding that Father did
not seek mental health treatment for the first four months of these proceedings.
III. Sufficient Evidence
[31] Finally, Father argues that there is “no evidence that the children are in danger,
that their needs are unmet, or that the coercive intervention of the court is
necessary to protect them.” Appellant’s Br. at 10. It is well-settled that
[i]n all CHINS proceedings, the State must prove by a
preponderance of the evidence that a child is a CHINS as defined
by the juvenile code. When reviewing a CHINS adjudication, we
do not reweigh evidence or judge witness credibility and will
reverse a determination only if the decision was clearly
erroneous. A decision is clearly erroneous if the record facts do
not support the findings or if it applies the wrong legal standard
to properly found facts.
V.B. v. Ind. Dep’t of Child Servs., 124 N.E.3d 1201, 1208 (Ind. 2019) (citations
and quotation marks omitted).
[32] DCS alleged that the children were CHINS pursuant to Indiana Code section
31-34-1-1, which provides that a child under the age of eighteen is a CHINS
under the following circumstances:
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(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.
[33] “That final element guards against unwarranted State interference in family life,
reserving that intrusion for families ‘where parents lack the ability to provide for
their children,’ not merely where they ‘encounter difficulty in meeting a child’s
needs.’” J.B. v. Ind. Dep’t of Child Servs., 2 N.E.3d 1283, 1287 (Ind. 2014)
(quoting Lake Cty. Div. of Fam. & Child. Servs. v. Charlton, 631 N.E.2d 526, 528
(Ind. Ct. App. 1994)). When considering this requirement, “courts should
consider the family’s condition not just when the case was filed, but also when
it is heard.” Gr. J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 580 (Ind. 2017)
(quotations omitted). “Doing so avoids punishing parents for past mistakes
when they have already corrected them.” Id. at 581.
[34] One occurrence of domestic violence in a child’s presence is sufficient to
support a CHINS determination. See In re D.P., 72 N.E.3d 976, 984 (Ind. Ct.
App. 2017) (“[A] single incident of domestic violence in a child’s presence may
support a CHINS finding, and it need not necessarily be repetitive.”). Mother
described several incidents of domestic violence in the family home. Father has
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a prior substantiated DCS history for physical abuse against E.Z., which also
resulted in a felony conviction. L.D. and E.Z. stated that Father hits Mother.
L.D. did not feel safe at home because of domestic violence. Father admitted
that he held a knife to his throat in the children’s presence and that he has
mental health issues. The children are seriously endangered by the domestic
violence in their home.
[35] Father argues that the coercive intervention of the court is no longer necessary
because he and Mother are getting divorced. However, Father needs to address
his mental health issues, and he had just started treatment for those issues in the
days before the September 5, 2019, fact-finding hearing. Father does not
acknowledge his physical abuse of the children and the effect that domestic
violence has had on the children. Father has not demonstrated that he is no
longer a danger to the children.
[36] Although there is some evidence supporting Father’s argument that the children
are not in need of services, it is not our role to reweigh the evidence and the
credibility of the witnesses. See In re K.D., 962 N.E.2d at 1253; see also Steele-Giri
v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (explaining that appellate courts grant
latitude and deference to trial courts in family law matters). Father has
untreated mental health issues, has not addressed his substance abuse issues,
and lacks understanding of the impact of domestic violence on his children. For
all of these reasons, DCS proved by a preponderance of the evidence that the
children are CHINS as defined in Indiana Code section 31-34-1-1.
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Conclusion
[37] Father has not established reversible error in the issues raised in this appeal.
And DCS proved by a preponderance of the evidence that the children are
CHINS. We therefore affirm the trial court’s order adjudicating L.D., E.Z., and
C.Z. as CHINS.
[38] Affirmed.
Riley, J., and Tavitas, J., concur.
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