In the Matter of J.A., A Child Alleged To Be In Need Of Services, M.A., Father v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Dec 03 2015, 6:26 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. Elkin Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of J.A., A Child December 3, 2015
Alleged To Be In Need Of Court of Appeals Case No.
Services, 52A02-1504-JC-281
Appeal from the Miami Circuit
M.A., Father, Court
The Honorable Timothy P. Spahr,
Appellant-Respondent, Judge
v. Trial Court Cause No.
52C01-1409-JC-66
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Brown, Judge.
[1] M.A. (“Father”) appeals from the trial court’s order determining that his
daughter J.A. is a child in need of services (“CHINS”). Father raises one issue
which we revise and restate as whether sufficient evidence supports the court’s
determination that J.A. is a CHINS. We affirm.
Facts and Procedural History
[2] Father lived with his daughter J.A., born April 25, 1998, in Peru, Indiana.
When J.A. and Father first moved to the residence in Peru in 2010 or 2011, she
lived there with Father, her stepmother M., her step-siblings, C.H. and Z., and
four of her biological siblings including her half-sister I.A. C.H. lived in the
residence until she left for college at the end of August 2014. In September
2014, I.A. was still living in the home with J.A. and Father.
[3] In the home, circumstances were such that J.A. “messed up” or made a “little
mistake,” Father would “lash out and scream on the top of his lungs.”
Transcript at 205. Father physically struck J.A. resulting in bruises on her
arms, but then that stopped after J.A. went to CPS when she was in the seventh
grade, and J.A. would then just be grounded and stay in her room.
[4] On September 12, 2014, J.A. went to soccer practice after school and it was
“kind of cold,” and Father picked her up after practice ended. Id. at 192. J.A.
thought they were going home, but Father drove past the road that led to their
house. J.A. asked Father where they were going, but he would not tell her.
J.A. became concerned, and they started fighting. Father told J.A. that her
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stepmother wanted her out of the house and that others never liked her and
hated her. J.A. felt worthless and became angry, upset, and confused. Father
yelled at her, she yelled back, and Father told her to “get out of the car.” Id. at
184. Father was “just like joking,” but J.A. took him seriously and wanted to
exit the car because she was afraid of him. She opened the door a little, and
Father said “no don’t ‘cause there’s a car coming up behind” him, believing an
occupant in the car would end up calling the police. Id. J.A. opened the door
further as Father slowed down the car a “little bit.” Id. He did not come to a
stop and was still going “[m]aybe . . . five to ten miles per hour,” and J.A., who
did not have shoes on at the time, jumped out of the car. Id. at 185. She
tripped but was uninjured, and did not see Father turn around or try to come
back despite the cold weather.
[5] Stephanie Birdsall, her fiancé, and her two children were traveling around fifty-
five or sixty miles per hour behind Father’s vehicle, and Birdsall observed J.A.
exit Father’s vehicle and that J.A. was visibly upset, crying, shaking, and very
scared. Birdsall exited her vehicle and asked J.A. if she wanted a ride. J.A.
decided to accept because she did not know how far out of town she was and
had no means of communication. When she entered the vehicle, Father sped
away and did not follow Birdsall’s vehicle.
[6] J.A. cried nearly until they reached Peru. Birdsall dropped her off a few blocks
away from the park in Peru and made a report to the Department of Child
Services (“DCS”). J.A. started walking and eventually spoke with the police
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that night and later went to the Sheriff’s Department. The police told J.A. that
Father was going to be arrested, and placed her with the parents of her friend.
[7] Meanwhile, Father called 911 and stated that his daughter exited his vehicle
and entered another vehicle. Miami County Sheriff’s Deputy Nathan Freeman
spoke with Father on the phone and was confused about the report of J.A.
jumping out of a vehicle and “getting into another vehicle unknown, and
[Father] didn’t seem concerned about it.” Id. at 234. Father did not know who
was driving the vehicle that picked up J.A., where she was going, or if she was
okay, and he did not try to obtain the license plate information from the
vehicle. Deputy Freeman also learned that Father did not appear “overly
concerned” and “didn’t seem to be upset at all.” Id. at 234-235.
[8] Deputy Freeman met Father at his residence and observed a lack of concern or
urgency to find his daughter. Father offered explanations that he was sure it
was a friend that picked up J.A., but he did not know which friend and did not
know the vehicle. Deputy Freeman asked him if he would be willing to go to
the Sheriff’s Department to speak with Detective Sergeant Michael Rogers, and
Father agreed.
[9] On September 16, 2014, DCS filed a verified petition alleging that J.A. was a
CHINS based upon this incident, J.A.’s expression of fear over escalating
domestic violence in the home, and a current investigation of Father for sexual
abuse against two of her siblings. The court held a hearing at which Father
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denied the allegations.1 That same day, the State charged Father with multiple
counts of child molesting and multiple counts of sexual misconduct with a
minor, alleging in part that he molested I.A., and also nineteen-year-old C.H.
before she was eighteen years old. A no contact order was issued between
Father and J.A.
[10] On January 7, 2015, DCS filed a verified amended petition alleging that J.A.
was a CHINS based upon the previously asserted allegations and because
Father was charged with the crimes of child molesting and sexual misconduct
with a minor on September 16, 2014, and the alleged victims lived in the same
household as J.A. during the time the alleged crimes were purported to have
taken place.
[11] On February 9, 2015, the court held a fact finding hearing. During the direct
examination of Detective Sergeant Rogers, the DCS attorney asked him
whether criminal charges were filed as a result of his investigation, and Father’s
counsel objected and stated that it was “completely irrelevant as to whether or
not there were any criminal charges filed.” Id. at 247. Father’s counsel also
argued that “[t]he statute does not require the filing of a criminal charge, at all.
Only that somebody within the house be a victim.” Id. The court overruled the
objection. The court took judicial notice of cause number 52C01-1409-FA-34,
1
Mother admitted that J.A. was a CHINS.
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in which Father was charged with child molesting and sexual misconduct with
a minor and C.H. and I.A. were the alleged victims.
[12] Family Case Manager Sara Stolinas (“FCM Stolinas”) testified that she had not
spoken with Father because it was her understanding that he was not available
without counsel present and because there was nothing she could really do for
him and J.A. due to the no contact order. FCM Stolinas recommended that
J.A. continue therapy and that she continue her placement with the foster
family because the concerns regarding placement had not been remedied. She
also testified that “as far as [Father] is concerned, I need to know that I can
work with [him] in order to get services going with him.” Id. at 262. The court
took the matter under advisement.
[13] Later that month, the court entered an order adjudicating J.A. to be a CHINS.
The court’s order states in part:
4. [J.A.] was born on April 25, 1998, and is sixteen (16) years of
age.
5. On September 12, 2014, [J.A.] lived in Father’s home in Peru,
Indiana. One of the other inhabitants of the home at that time
was Father’s daughter and [J.A.’s] half-sister, [I.A.]. In the past,
[J.A.] and Father had lived in the same household as their
stepsister and stepdaughter, [C.H.], too, although it does not
appear that that was the case on September 12, 2014.
6. On September 12, 2014, [J.A.] jumped from Father’s vehicle
during an argument between them. Father’s vehicle was
traveling only at the rate of five (5) or ten (10) miles per hour at
the time that [J.A.] exited it. There is no indication that Father
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was threatening [J.A.] at the time that she got out of the vehicle.
Father told [J.A.] to get out of his vehicle and she says she took it
seriously at the time, although [J.A.] also has described Father as
having said it jokingly. Fortunately, [J.A.] did not fall when she
exited Father’s vehicle and she was not hurt in any way.
7. Another vehicle was directly behind Father’s vehicle when
[J.A.] got out of it. That vehicle, which had stopped behind
Father’s vehicle, was occupied by Stephanie Birdsall, her fiancé,
and her two children. Father drove away, leaving [J.A.] by the
side of the road, crying and shaking. Birdsall offered [J.A.] a ride
in her vehicle. Meanwhile, Father continued driving away, never
stopping to confirm whether [J.A.] was fine; to prevent [J.A.]
from getting into a vehicle with Birdsall and her family, who
were strangers to [J.A.] and Father; or to follow the Birdsall
vehicle. He also did not seek to gather identifying information
(such as a license plate number) from the Birdsall vehicle.
8. Father later reported the event to law enforcement and met
with a law enforcement officer, Deputy Nate Freeman of the
Miami County Sheriff’s Department, in order to discuss [J.A.’s]
possible whereabouts. Nevertheless, abandoning [J.A.] by the
side of the road and knowingly permitting her to depart in a
complete stranger’s vehicle constituted both a serious lapse in
judgment and a lack of supervision that seriously endangered
[J.A.’s] physical condition.
9. Father was arrested for Neglect of Dependent as to [J.A.] on
September 13, 2014. A No Contact Order between him and
[J.A.] remains in effect. Three days later, he was also charged
with two counts of Child Molesting under Indiana Code 35-42-4-
3 and two counts of Sexual Misconduct with a Minor under
Indiana Code 35-42-4-9, with those four counts relating to
Father’s stepdaughter, [C.H.], as the named victim, and one
additional count of Child Molesting under Indiana Code 35-42-4-
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3, that count relating to Father’s daughter and [J.A.’s] half-sister,
[I.A.], as the named victim.
10. The evidence adduced at the Fact-Finding Hearing shows
that [J.A.’s] emotional state and conduct have been volatile at
times, so much so that she previously was in counseling at Four
County Counseling in 2013. Also, about a week before the
September 12, 2014 incident, she struck Father during an
argument over the delivery of books to the local library.
11. Additionally, [J.A.] has a very weak relationship with
Mother. In fact, [J.A.] has not spent the night at Mother’s home
for approximately four (4) years and had not talked to Mother for
about three (3) months before the September 12, 2014 incident.
As a result of this CHINS proceeding, [J.A.] has been receiving
counseling and [J.A.] and Mother have been participating in
visitation through Reins and Rainbows, which is located in
Wabash County, Indiana. As Mother acknowledged during her
testimony, both she and [J.A.] can be introverts, their
relationship still needs work, and the counseling at Reins and
Rainbows is benefiting both of them.
12. [J.A.] clearly needs such counseling, both individually and
with regard to repairing her relationship with her Mother.
However, [J.A.’s] conflict with Father and her resistance toward
living with Mother have been strong enough that it is unlikely
that she would willingly participate in the needed counseling
with Mother without the coercive intervention of the Court.
13. Sara Stolinas, a DCS caseworker who has been assigned to
provide services to [J.A.], has determined that a program of
informal adjustment or other family or rehabilitative services is
inappropriate.
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14. While Father cites to the case of In the Matter of D.H., J.H.,
J.B.H., L.H. and N.H., 859 N.E.2d 737 (Ind. Ct. App. 2007), the
Court notes that, in 2013, I.C. 31-34-1-3(b)(2) was amended by
the Indiana General Assembly to add subparagraph (B). In
doing so, the legislature expressed its intent that a child could be
found to be a Child in Need of Services under I.C. 31-34-1-3(b),
even if the criminal charges against the alleged perpetrator still
are pending. That legislative change makes sense from a public
policy standpoint, considering that the law has changed to
require that [CHINS] proceedings typically reach a fact-finding
hearing within 60 to 120 days after they are just filed – much
faster than in the past and also much faster than most criminal
sex offenses can reach a final disposition.
15. Mother has argued that [J.A.] cannot be a Child in Need of
Services pursuant to I.C. 31-34-1-3 because she did not live with
either Father or [I.A.] on the date when the CHINS Petition was
filed.2 The Court does not find that argument convincing. After
all, but for the events of September 12, 2014, the DCS’s resultant
removal of [J.A.] approximately three days before the first
CHINS Petition was filed in this case, she would still have been
living in Father’s home with Father and [I.A.]. CHINS Petitions
are almost never filed on the exact same day as the removal of
the child, and so giving force to Mother’s argument would cause
I.C. 31-34-1-3 to almost never be applicable – clearly a result that
was not intended by the legislature.
16. In light of the charge of Child Molesting against Father as to
[I.A.] and all of the other above-stated facts, the Court concludes
2
The Court considers the Amended CHINS Petition to relate back to the date of filing of
the original CHINS Petition.
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that [J.A.] is a Child in Need of Services under both I.C. 31-34-1-
1 and I.C. 31-34-1-3.
Appellant’s Appendix at 16-18.
[14] On April 1, 2015, the court held a dispositional hearing. Two weeks later, the
court entered a dispositional order that J.A. remain in her current placement
and receive services including individual therapy at Reins and Rainbows,
visitation with Mother, and family therapy with Mother. The order stated that
Father would not be ordered to participate in any of the services requested by
DCS so long as there is a no contact order in place through the criminal cause,
and that Father does not wish to have any contact with J.A.
Discussion
[15] The issue is whether sufficient evidence supports the court’s determination that
J.A. is a CHINS. In reviewing a trial court’s determination that a child is in
need of services, we neither reweigh the evidence nor judge the credibility of the
witnesses. In re S.D., 2 N.E.3d 1283, 1286-1287 (Ind. 2014), reh’g denied.
Instead, we consider only the evidence that supports the trial court’s decision
and reasonable inferences drawn therefrom. Id. DCS is required to prove by a
preponderance of the evidence that a child is a CHINS. In re A.H., 913 N.E.2d
303, 305 (Ind. Ct. App. 2009). When a court’s orders contain specific findings
of fact and conclusions of law, we engage in a two-tiered review. Id. First, we
determine whether the evidence supports the findings. Id. Then, we determine
whether the findings support the judgment. Id. We reverse the trial court’s
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judgment only if it is clearly erroneous. Id. A judgment is clearly erroneous if it
is unsupported by the findings and conclusions. Id. When deciding whether
the findings are clearly erroneous, we consider only the evidence and
reasonable inferences therefrom that support the judgment. Id.
[16] We note that the trial court concluded that J.A. was a CHINS under both Ind.
Code § 31-34-1-1 and Ind. Code § 31-34-1-3. We begin by discussing Ind. Code
§ 31-34-1-1 which governs the CHINS determination and provides:
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.
[17] The CHINS statute does not require a tragedy to occur before a court may
intervene. In re A.H., 913 N.E.2d at 306. “Rather, a child is a CHINS when he
or she is endangered by parental action or inaction.” Id. “The purpose of a
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CHINS adjudication is not to punish the parents, but to protect the children.”
Id.
[18] Father argues that any allegation under Ind. Code § 31-34-1-1 fails because
there was no allegation and no findings by the court regarding this issue. He
contends that the September 16, 2014 allegations did not contain reference to
any serious impairment to J.A. He points to Paragraph 7 of the court’s
February 2015 order and says that there was no testimony that J.A. was crying
or shaking by the side of the road. He points to Paragraph 8 which found in
part that he abandoned J.A. by the side of the road and knowingly permitted
her to depart in a stranger’s vehicle, and argues that the finding contradicts the
evidence and that the conclusion that he demonstrated a lack of supervision
seriously endangering her physical condition was without a factual basis. He
asserts that he reported his belief that J.A. entered the vehicle of a friend. He
also contends that the trial court created a requirement that all parents prevent
all bad acts by all children.
[19] DCS’s position is that the record supports the challenged findings and that
Father’s arguments are a request to reweigh the evidence. DCS also argues that
the coercive intervention of the court was necessary.
[20] With respect to Father’s argument that there was no allegation and no findings
regarding Ind. Code § 31-34-1-1, we disagree. In its petitions, DCS alleged that
Father did not stop or try to ensure J.A.’s safety after she jumped from his
moving vehicle and that she was given a ride back into Peru by strangers. The
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court found that J.A. jumped from Father’s moving vehicle after he told her to
exit his vehicle, that he drove away, leaving her by the side of the road crying
and shaking, that she entered Birdsall’s vehicle, and that Father “continued
driving away, never stopping to confirm whether [J.A.] was fine; to prevent
[J.A.] from getting into a vehicle with Birdsall and her family, who were
strangers to [J.A.] and Father; or to follow the Birdsall vehicle.” Appellant’s
Appendix at 17. The court found that Father “also did not seek to gather
identifying information (such as a license plate number) from the Birdsall
vehicle.” Id. The court acknowledged that Father later reported the event to
law enforcement but stated that “[n]evertheless, abandoning [J.A.] by the side
of the road and knowingly permitting her to depart in a complete stranger’s
vehicle constituted both a serious lapse in judgment and a lack of supervision
that seriously endangered [J.A.’s] physical condition.” Id.
[21] As for Father’s argument that he reported his belief that J.A. entered the vehicle
of a friend, we observe that Deputy Freeman testified that Father offered
explanations that he was sure it was a friend that picked up J.A., but he did not
know which friend and did not know the vehicle. As for Father’s assertion that
there was no testimony that J.A. was crying or shaking by the side of the road,
Birdsall testified that J.A. exited the vehicle, started walking back towards Peru
and that “she was crying and she was shaking . . . so that’s when I had got out
and asked her if she wanted a ride.” Transcript at 219.
[22] Based upon the record, we conclude that the findings of the trial court support
the conclusion that J.A.’s physical condition was seriously endangered as a
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result of the inability, refusal, or neglect of Father to provide her with necessary
supervision.3
[23] We next turn to Ind. Code § 31-34-1-3 which provides:
(a) A child is a child in need of services if, before the child
becomes eighteen (18) years of age:
(1) the child is the victim of a sex offense under:
*****
(C) IC 35-42-4-3 [Child molesting];
*****
(F) IC 35-42-4-9 [Sexual misconduct with a minor];
(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.
3
To the extent that Father asserts there was no basis to keep J.A. from Mother, we observe that Mother
conceded at the initial hearing that J.A. was a CHINS and does not appeal the court’s order.
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(b) A child is a child in need of services if, before the child
becomes eighteen (18) years of age:
(1) the child lives in the same household as another child
who is the victim of a sex offense under:
*****
(C) IC 35-42-4-3 [Child molesting];
*****
(F) IC 35-42-4-9 [Sexual misconduct with a minor];
*****
(2) the child lives in the same household as the adult who:
(A) committed the sex offense under subdivision (1)
and the sex offense resulted in a conviction or a
judgment under IC 31-34-11-2; or
(B) has been charged with a sex offense listed in
subdivision (1) and is awaiting trial;
(3) 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; and
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(4) a caseworker assigned to provide services to the child:
(A) places the child in a program of informal
adjustment or other family or rehabilitative services
based upon the existence of the circumstances
described in subdivisions (1) and (2) and the
assigned caseworker subsequently determines
further intervention is necessary; or
(B) determines that a program of informal
adjustment or other family or rehabilitative services
is inappropriate.
[24] To the extent that this case requires that we interpret Ind. Code § 31-34-1-3, we
observe that when interpreting a statute, we independently review a statute’s
meaning and apply it to the facts of the case under review. Bolin v. Wingert, 764
N.E.2d 201, 204 (Ind. 2002). If a statute is unambiguous, we must give the
statute its clear and plain meaning. Id. A statute is unambiguous if it is not
susceptible to more than one interpretation. Elmer Buchta Trucking, Inc. v.
Stanley, 744 N.E.2d 939, 942 (Ind. 2001). If a statute is susceptible to multiple
interpretations, we must try to ascertain the legislature’s intent and interpret the
statute so as to effectuate that intent. Bolin, 764 N.E.2d at 204. We presume
the legislature intended logical application of the language used in the statute,
so as to avoid unjust or absurd results. Id. A statute should be examined as a
whole, avoiding excessive reliance upon a strict literal meaning or the selective
reading of individual words. Mayes v. Second Injury Fund, 888 N.E.2d 773, 776
(Ind. 2008).
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[25] With respect to Father’s assertion that Ind. Code § 31-34-1-3(a) requires an
allegation regarding a sex offense against J.A. by Father, we agree with the
State that DCS did not allege that J.A. was a victim of a sex offense. Rather,
DCS alleged that subsection (b) was the applicable subsection.
[26] To the extent that Father argues that subsection (b)(1) requires that the State
demonstrate that J.A. lived in the same household as another child who is the
victim of a sex offense, the record reveals that Detective Sergeant Rogers
testified that he was involved in an investigation regarding Father’s family, that
he interviewed J.A., C.H, and Father’s wife, that I.A. was interviewed at the
Child Advocacy Center, and that the State filed charges against Father for
molesting C.H. and I.A. The Appellant’s Appendix contains a probable cause
affidavit in which Detective Sergeant Rogers stated in part that C.H. provided
recorded and sworn statements advising that Father had molested her since she
was nine to ten years old and that Father would show her pornographic movies
while they were having sex. Detective Sergeant Rogers also stated that Father’s
wife believed Father may be molesting I.A. since C.H. went to college, that I.A.
stated that she was forced to stay with Father in the bedroom and that he
touches her chest and grabs her butt, and that a search of the residence revealed
numerous compact discs labeled to indicate that they were adult films involving
sexual activity including “Teen Anal” and “Bring ‘em young.” Appellant’s
Appendix at 66. The court took judicial notice of cause number 52C01-1409-
FA-34, in which Father was charged with child molesting and sexual
misconduct with a minor and C.H. and I.A. were the alleged victims. We
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conclude that the record contains sufficient evidence to meet the requirements
of subsection (b)(1) by a preponderance of the evidence.
[27] Next, we address subsection (b)(2) which provides that the “child lives in the
same household as the adult who (A) committed the sex offense under
subdivision (1) and the sex offense resulted in a conviction or a judgment under
IC 31-34-11-2; or (B) has been charged with a sex offense listed in subdivision (1) and is
awaiting trial . . . .” (Emphasis added).
[28] With respect to Father’s argument that J.A. did not live with him when the
molesting offenses occurred because J.A. had already been removed at the time
DCS amended its CHINS petition, we observe that the trial court noted that it
considered the Amended CHINS petition to relate back to the date of filing of
the original CHINS petition. As pointed out by the State, Ind. Trial Rule 15(C)
provides that “[w]henever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment relates back to
the date of the original pleading.” The initial petition alleged that J.A. was a
CHINS based upon a current investigation of Father for sexual abuse against
two of J.A.’s siblings. We conclude that the amended petition included a claim
that arose out of the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading. Thus, we cannot say that the trial court
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erred in finding that the amendment related back to the date of the original
pleading or its conclusion that J.A. was a CHINS under Ind. Code § 31-34-1-3.4
Conclusion
[29] For the foregoing reasons, we affirm the trial court’s determination that J.A. is
a CHINS.
[30] Affirmed.
Riley, J., and Altice, J., concur.
4
As to Father’s argument that the trial court took “judicial notice without a foundation for the charges from
the alleged victim(s),” Appellant’s Brief at 18, we observe that Father does not cite authority or develop a
cogent argument. Consequently, this issue is waived. See Loomis v. Ameritech Corp., 764 N.E.2d 658, 668
(Ind. Ct. App. 2002) (holding argument waived for failure to cite authority or provide cogent argument), reh’g
denied, trans. denied.
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