Opinion
24A-JC-790
09-19-2024
In the Matter of Ale.A., Ala.A., J.A., D.T., L.T., M.T., N.T., J.T., I.T., and A.T., Children Alleged to Be in Need of Services E.T. (Mother) and C.T. (Father/Step-Father), Appellants-Respondents v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT E.T. (MOTHER) Audrey Lunsford Lunsford Legal, LLC. ATTORNEY FOR APPELLANT C.T. (STEPFATHER) Lisa Diane Manning. ATTORNEYS FOR APPELLEE Theodore E. Rokita, Monika Prekopa Talbot.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hendricks Superior Court The Honorable Ryan Tanselle, Judge Trial Court Cause Nos. 32D03-2306-JC-18, 32D03-2306-JC-19, 32D03-2306-JC-20, 32D03-2306-JC-21,
32D03-2306-JC-22, 32D03-2306-JC-23, 32D03-2306-JC-24, 32D03-2306-JC-25, 32D03-2306-JC-26, 32D03-2306-JC-27
ATTORNEY FOR APPELLANT E.T. (MOTHER) Audrey Lunsford Lunsford Legal, LLC.
ATTORNEY FOR APPELLANT C.T. (STEPFATHER) Lisa Diane Manning.
ATTORNEYS FOR APPELLEE Theodore E. Rokita, Monika Prekopa Talbot.
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] C.T. ("Father") and E.T. ("Mother") (collectively, "Parents") appeal the trial court's order adjudicating their ten children to be children in need of services (CHINS), arguing the evidence is insufficient to support the adjudication. We affirm.
Facts and Procedural History
[¶2] Mother has ten children: Ale.A., born in November 2006; Ala.A., born in March 2011; J.A., born in December 2012; D.T., born in May 2015; L.T., born in November 2016; M.T., born in May 2018; N.T., born in July 2019; J.T., born in December 2020; I.T., born in January 2022; and A.T., born in March 2023. Father is the biological father of D.T., L.T., M.T., N.T., J.T., I.T., and A.T. and the stepfather of Ale.A., Ala.A., and J.A. Ale.A.'s biological father and Ala.A. and J.A.'s biological father admitted their respective children were CHINS in the trial court and do not participate in this appeal.
[¶3] Before this case, the family lived in Ohio. When Ale.A. was nine years old, Ohio Child Protective Services got involved with the family due to Father using excessive physical discipline against the children. It was substantiated that Father choked Ale.A., and Father was ordered to move out of the home. When he was allowed to return, it "wasn't very long" before he started beating the children again. Tr. Vol. III p. 173. There was also violence between Parents. They fought and threw things, and Father punched holes in the walls. On several occasions, Mother called her parents-the children's maternal grandmother ("Grandmother") and step-grandfather ("Step-Grandfather")- and told them Father hit her in the head and smacked her.
[¶4] In 2017, the family moved to Indianapolis, and the physical abuse continued. Father beat the children with a belt daily, including J.T. when he was as young as two years old. Father also made J.A. run up and down the stairs until he was too tired to continue. Grandmother noticed marks and bruises on the children on multiple occasions. Once when Ale.A. was eleven, she saw a bruise on Mother's face, and Mother told her the bruise was from Father hitting her.
[¶5] Mother homeschooled the children because she "do[es]n't like what's being taught in public schools." Id. at 193. When the children started homeschooling, they had no formal curriculum; Mother got school-appropriate books at the children's grade levels from the library, but there weren't enough books for all the children. Parents are also "very against doctors," and Father got mad if the children needed to go to the doctor. Id. at 141. As such, the children don't receive regular medical care, even though D.T. has sickle cell anemia and all the children have sickle cell trait, which "should be monitored on a regular basis." Tr. Vol. II p. 248.
[¶6] The Department of Child Services (DCS) first became involved with the family in April 2023. Around 10 p.m. on April 10, Father kicked Ale.A., then sixteen, out of the house because Parents "just couldn't cope" with her "rebellious attitude." Tr. Vol. III p. 194. Ale.A. went to a gas station. Mother called Grandmother crying, saying Father had kicked Ale.A. out and asking her to pick Ale.A. up from the gas station. Several days later, DCS received a report that Father had sexually abused Ale.A. In May, DCS received additional reports of sexual abuse of Ale.A., physical abuse of the children, educational and medical neglect, and a possible lack of food in the home.
[¶7] DCS conducted several home visits and sought to obtain school and medical records for the children. Mother provided an attendance chart showing that Ale.A. had attended around 120 days of school and the other school-aged children had attended around 130, even though state law requires 180 days of attendance. Parents claimed the missed days of school were from when the family was moving. Mother also told DCS she "does not regularly take any of her children to the doctor unless she feels it is absolutely necessary." Appellant's App. Vol. II p. 43. During one visit to the home, assessment Family Case Manager (FCM) Michael Howell photographed the contents of the pantry, cabinets, refrigerator, and freezer due to concern for lack of food. While there was food in the home, FCM Howell felt it was less food than he's used to observing in homes, especially given the number of people living there. He offered referrals for food assistance, but Mother declined. DCS also had concerns that there weren't enough beds for all the children.
[¶8] On June 19, DCS filed a petition alleging the children were CHINS. The next day, Ale.A. was removed and placed in relative care with her Grandmother because of the allegations of sexual abuse by Father. The other nine children remained in the home. Barakat Ajayi was assigned as the permanency FCM. The first time she visited the home, Parents wouldn't let her speak with the children. After that, Mother allowed DCS in the home but wouldn't let them talk to the children alone or take pictures, and Parents recorded all DCS interactions with the children. Parents controlled when DCS could visit their home and thus there were no unannounced visits.
[¶9] Stephanie Neier was assigned as the children's court-appointed special advocate (CASA). At first, Parents didn't let CASA Neier speak with the children. Once the court ordered them to cooperate and CASA Neier started visits, she noticed the children were much more engaged with her when Father wasn't home. During two of CASA Neier's visits, J.T. was eating toilet paper. Mother and the other children reported that this happened regularly. CASA Neier also obtained copies of the children's medical records, which showed that the children had missed many follow-up appointments. For example, J.A. was seen in the ER in December 2021 and was instructed to follow up with his primary care doctor, but he didn't have another appointment until fourteen months later. Some records noted that Mother didn't have transportation to get the children to appointments, but when Mother was offered free transportation through Medicaid, she declined.
[¶10] In July, the family began family-preservation services with Elizabeth McClure through Cummins Behavioral Health Systems. Mother only allowed familypreservation services when Father was home. McClure visited the house at the beginning of August, the week the school-aged children started school. Mother had started them on a new curriculum through Easy Peasy All-in-One Homeschool. During the visit, McClure saw the computer system the children used for school. There were two laptops and folders with the children's schoolwork but no books in the home. When FCM Ajayi and CASA Neier visited the home later the same week, the school-aged children didn't want to show their schoolwork. Ala.A. eventually showed CASA Neier some books and notebooks as well as a math worksheet she self-scored, which CASA Neier could see was not correct. The children were supposed to have been in school for six days, but Ala.A. only had two days' worth of schoolwork. Mother showed FCM Ajayi and CASA Neier the Easy Peasy program on the computer, but only day one was checked as completed.
[¶11] A fact-finding hearing was held on August 9. Father invoked his Fifth Amendment privilege against self-incrimination in response to several questions, including (1) whether he sexually abused Ale.A.; (2) if he hits the children with a belt; (3) how he would describe the discipline in the household and educational programming for the children; (4) if he schedules yearly checkups with the children's pediatrician; (5) if there have been times where there wasn't enough food for everyone in the house; and (6) whether there has been domestic violence between him and Mother. The trial court drew a negative inference from each of these invocations. Similarly, Mother invoked her Fifth Amendment privilege when asked whether she found Father and Ale.A. alone in a bedroom with the door closed and what educational programming the children had been using before Easy Peasy. The trial court again drew negative inferences.
[¶12] McClure testified that the family should continue to be monitored for food sufficiency and meeting educational needs, and Parents need to work on their parenting skills. Similarly, FCM Ajayi recommended a CHINS adjudication because of concerns for the children's educational needs not being met (which DCS hadn't been able to monitor because school had just started), domestic violence, medical needs not being met, not enough food in the home, lack of safe-sleeping arrangements, excessive physical discipline, and the sexual-abuse allegations. FCM Ajayi testified that she didn't have any concerns about there not being enough beds or food based on what she'd seen in the home, but she believed Parents may have been "staging the home" for visits, including stocking food beforehand, because they always scheduled the providers to come at the same time. Tr. Vol. II p. 239. She also noted that since DCS got involved, medical appointments have been scheduled for the children.
[¶13] CASA Neier testified that she'd visited the home twice during school hours, but the children weren't doing any work. She noted that Ale.A. is now in eleventh grade at an online public high school but has no high-school transcript and will be graduating two years late. CASA Neier also expressed concern about food security based on the amount, type, and quality of food given to the children when she was there and J.T. eating toilet paper on a regular basis.
[¶14] Grandmother expressed concern for the children's safety because of Father's demeanor and about whether the children are eating consistently. She said that when she saw them in April, "they were real frail and skinny and pale" and seemed "maln[ourished]." Tr. Vol. III p. 52. Step-Grandfather testified that he helped set the children up for homeschooling when they first enrolled, but after the first year, he never saw them doing schoolwork or saw any study materials. He worried that if DCS weren't involved with the family, Father would seriously harm the children and they wouldn't continue educational programming.
[¶15] Ale.A. testified that the children first enrolled in a homeschooling program when she was nine years old but it "barely lasted for a semester" before they were taken out. Id. at 142. She explained she's in eleventh grade but she struggles with the work because she "didn't have much schooling growing up." Id. at 170. Ale.A. also described times when there wasn't enough food for everyone in the house and said sometimes the children had to go without food for a day or two. Ale.A. feared the domestic violence and abuse in the home would worsen if DCS were no longer involved.
[¶16] On September 6, before the trial court issued its CHINS determination, Father was charged with Level 3 felony rape, Level 5 felony child seduction, Level 6 felony child seduction, and Level 6 felony neglect of a dependent for sexually abusing Ale.A.
In its brief, DCS asks us to take judicial notice of this case. Neither parent filed a reply brief contesting this request. Under Indiana Evidence Rule 201(b)(5), we may take judicial notice of the records of a court of this state. And Rule 201(d) provides that judicial notice may be taken at any stage of the proceedings, including on appeal. In re Guardianship of A.E.R., 184 N.E.3d 629, 633 n.1 (Ind.Ct.App. 2022). Accordingly, we take judicial notice of Father's criminal case. On August 14, 2024, Father pled guilty to Level 5 felony child seduction, and the State dismissed the remaining charges. The parties agreed Father's sentence would be capped at five years. A sentencing hearing is scheduled for October 8.
[¶17] In December, the trial court entered an order adjudicating all ten children to be CHINS. After a hearing in February 2024, the court issued dispositional orders setting forth various requirements for Mother and Father.
[¶18] Parents now separately appeal. Discussion and Decision
[¶19] Parents contend the evidence is insufficient to support the trial court's determination that the children are CHINS. We will reverse a CHINS adjudication only upon a showing that the trial court's decision was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). We consider only the evidence that supports the decision and all reasonable inferences that can be drawn therefrom, and we will not reweigh the evidence or judge witness credibility. Id.
[¶20] To establish that a child is a CHINS, DCS must prove one of the eleven statutory circumstances set forth in Indiana Code chapter 31-34-1. Id. Here, the trial court based the CHINS adjudication on several of the statutory provisions. It found all ten children to be CHINS under Section 31-34-1-1: 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:
(A) when the parent, guardian, or custodian is financially able to do so; or
(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; 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.
[¶21] The trial court also found Ale.A. to be a CHINS under Section 31-34-1-3(a) because she is the victim of an offense listed in subsection (a)(1) (which includes sex crimes). Given Ale.A.'s status as the victim of a sex crime, the court also found that the younger nine children are CHINS under Section 31-34-1-3(c) because they lived in the same household as Ale.A.
[¶22] In their respective briefs, Mother and Father challenge the CHINS adjudication under Section 31-34-1-1. But, as DCS points out, Mother and Father make no argument that the children are not CHINS under Section 31-34-1-3. See Appellee's Br. p. 28. While we could affirm on this ground alone, because we prefer to consider the merits of CHINS matters, see In re D.J., 68 N.E.3d 574, 579-80 (Ind. 2017), we will address Parents' arguments under Section 31-34-1-1.
I. Mother's challenges to the trial court's findings of fact are without merit
[¶23] While Father does not challenge any of the trial court's findings of fact, Mother argues that several findings are not supported by the evidence. She first challenges Findings 6 and 7, where the trial court found that Father and Mother are not credible based on their demeanor in court. We do not judge the credibility of witnesses on appeal, see K.D., 962 N.E.2d at 1253, so we will not second guess the trial court's findings as to Parents' credibility.
[¶24] The court also drew numerous negative inferences from Father's and Mother's testimony because they each pled the Fifth Amendment in response to multiple questions. Our Supreme Court has established that a court in a civil proceeding may draw a negative inference from a claim of the Fifth Amendment privilege against self-incrimination. See In re Ma.H., 134 N.E.3d 41, 47 (Ind. 2019), reh'g denied. Findings 6 and 7 are not clearly erroneous.
[¶25] Mother next challenges Finding 11, which states, in relevant part:
a. [Parents] were dismissive of [Ale.A.'s] statements and concerns to FCM Delay. [Parents] continued this pattern of behavior to Permanency FCM Barakat Ajayi, the permanency FCM who took over the case from FCM Delay. For example, [Parents] have both claimed to FCM Ajayi that [Ale.A.] is troubled and that the sexual allegations are false.
b. [Mother] testified that she believed [Ale.A.] made the allegations of sexual abuse because she is going through a rebellious phase and was not able to get her way in [Parents'] home.Appellant's App. Vol. II p. 123. Mother argues that the trial court "completely disregarded the testimony regarding [Ale.A.'s] defiant attitude and circumstances around her actions when reaching this conclusion." Mother's Br. p. 36. Assuming Mother is referring to her own testimony, as noted above, the trial court found her not to be credible. And in any event, looking at Finding 11,the trial court took this testimony into account. Mother is essentially asking us to give more weight to her testimony than the trial court did, which, again, we will not do. Finding 11 is not clearly erroneous.
[¶26] Mother also challenges Findings 12, 13, and 14. But in these challenges, Mother doesn't dispute that there is evidence supporting the findings; instead, she merely points to contradictory evidence presented at the fact-finding hearing. This is simply an invitation for us to reweigh the evidence, which we will not do. See K.D., 962 N.E.2d at 1253.
II. The trial court's CHINS adjudication was not clearly erroneous
[¶27] Mother and Father both argue there is insufficient evidence to establish the statutory requirements for a CHINS adjudication under Indiana Code section 31-34-1-1. For his part, Father challenges the adjudication only as to the younger nine children. An adjudication under Section 31-34-1-1 "requires 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." In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014), reh'g denied.
[¶28] The trial court found the children to be CHINS under Section 31-34-1-1 due to missed medical appointments, lack of food in the home, domestic violence and physical abuse in the home, and Parent's lack of cooperation with DCS. The court determined that the adjudication under Section 31-34-1-1 for the schoolaged children (Ale.A., Ala.A., J.A., D.T., and L.T.) was "supported by I.C. 2033-2-6 [compulsory school attendance] for educational neglect." Appellant's App. Vol. II p. 128.
[¶29] There is sufficient evidence in the record that Parents' actions seriously endangered the children and that the children's needs are unmet. The children are endangered by Father's physical abuse. When the family lived in Ohio, it was substantiated that Father choked Ale.A. Ale.A. described that Father beats the children with a belt daily and that he and Mother get in fights and throw things at each other, including knives. Grandmother has observed marks and bruises on the children on multiple occasions, and Step-Grandfather has been present when J.A. has been beaten with a belt and forced to run up and down the stairs. Grandmother, Step-Grandfather, and Ale.A. all testified that Father gets angry and punches holes in the wall. And Mother has disclosed to all three of them that Father physically abused her.
[¶30] Additionally, the children's medical needs are unmet. Their medical records show that they missed multiple scheduled appointments and that some of the children went well over a year without seeing a doctor despite being recommended for follow-ups. Father gets mad if the children must go to the doctor, and Mother said she only takes the children when she "feels it is absolutely necessary." This is especially concerning given that D.T. has sickle cell anemia and all the children have sickle cell trait, which should be monitored regularly.
[¶31] Parents have also shown an inability to meet the children's nutritional needs. In April 2023, Grandmother observed the children were "real frail and skinny and pale" and seemed "maln[ourished]." Ale.A. testified that sometimes the children had to go without food for a day or two because there wasn't enough food for everyone in the house. Though providers have seen food in the home, FCM Howell felt it was less food than he's used to seeing in homes, especially given the number of people living there, and CASA Neier expressed concern about the amount, type, and quality of food the children are given.
[¶32] Further, Ale.A., Ala.A., J.A., D.T., and L.T.'s educational needs are not being met. Ale.A. recalled that when they were first enrolled in homeschool, it "barely lasted for a semester" before they were taken out. Along the same lines, Step-Grandfather said after the first year of homeschooling, he never saw the children doing schoolwork or saw any study materials. The attendance records Mother provided show Ale.A. attended around 120 days of school and the other school-aged children attended around 130, even though state law requires 180 days of attendance. More recently, when CASA Neier visited during two school days, the children weren't doing any work. They were reluctant to show her any school materials, and when Ala.A. showed CASA Neier a self-scored math worksheet, it was incorrect. Additionally, Ala.A. had only two days' worth of work and only day one was checked as completed on Easy Peasy, even though the children were supposed to have been in school for six days.
[¶33] The evidence also establishes that the Children's needs are unlikely to be met without State coercion. Both grandparents expressed concern for the children's safety, and Stepfather worried that if DCS weren't involved with the family, Father would seriously harm the children. Ale.A., too, feared the domestic violence and abuse in the home would worsen if DCS were no longer involved. As to the unmet medical needs, while appointments have been scheduled since DCS got involved, there is no guarantee that Parents will take the children to the appointments given that they haven't in the past and that Mother has refused transportation assistance. Additionally, McClure opined that the family should continue to be monitored for food sufficiency and meeting educational needs. Although providers have seen food in the home, FCM Ajayi worried that Parents were "staging the home" by stocking food before provider visits. While Mother has enrolled the school-aged children in a formal homeschool curriculum, as of the first week, only one day was marked as completed. And, the children disclosed that they "only got schoolwork done when DCS was there." Tr. Vol. II p. 233.
[¶34] Parents have not shown that the CHINS adjudication was clearly erroneous.
[¶35] Affirmed.
Weissmann, J., and Foley, J., concur.