Opinion
23A-JC-3024
08-12-2024
In the Matter of B.F., S.F., and A.F., Minor Children Alleged to be in Need of Services, v. Indiana Department of Child Services, Appellee-Petitioner B.M. (Mother), Appellant-Respondent
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Vigo Circuit Court The Honorable Daniel W. Kelly, Magistrate Trial Court Cause Nos. 84C01-2302-JC-145 84C01-2302-JC-146 84C01-2302-JC-147
ATTORNEY FOR APPELLANT
Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
Weissmann and Foley Judges concur.
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] B.M. ("Mother") appeals the trial court's order adjudicating three of her children to be children in need of services (CHINS), arguing the evidence is insufficient to support the adjudication. We disagree and affirm.
Facts and Procedural History
[¶2] Mother and J.F. ("Father") have three children together: B.F., born in June 2017; S.F., born in February 2020; and A.F., born in September 2021 ("the Children"). They also have older children from prior relationships. The Department of Child Services (DCS) has been involved with the family for many years. There have been "six (6) involvements with the older children, and four (4) with the younger children." Tr. Vol. II p. 141. There was an informal adjustment concerning two children in 2017, which was closed unsuccessfully when the family relocated and DCS could not find them. In addition, DCS filed four or five motions to compel against Mother and Father due to their unwillingness to cooperate with investigations. Once, the family fled after a court granted a DCS motion to compel.
[¶3] Father has a history of physically abusing Mother, sometimes in front of the Children. In January 2021, Father was charged with several offenses related to allegations that he battered Mother with a child present. The State agreed to defer prosecution of Father in exchange for Father complying with certain conditions, including that he have no contact with Mother. In September 2022, Father was arrested on a misdemeanor charge of invasion of privacy when police were dispatched to Mother's home and found Father there. Then, in December 2022, Father went to Mother's home, again in violation of the nocontact order, and battered and threatened to kill her in the presence of some of the children. (Father wasn't arrested or charged for this incident.)
[¶4] The day after the last incident, DCS sent a family case manager to Mother's home to conduct an assessment. Mother said she would not cooperate with DCS without a warrant. DCS sought a court order requiring Mother to cooperate. A hearing was held in January 2023. Mother and Father drove to the hearing together even though there was still a no-contact order in place. The trial court granted DCS's motion. The next day, the family case manager returned to Mother's home. Mother was cooperative until she learned that DCS planned to file CHINS petitions. At that point Mother raised her voice and told the family case manager to leave.
[¶5] In February 2023, DCS filed CHINS petitions as to all three of the Children, citing Father's violence and Mother's failure to separate from him. The Children were removed from Mother's home and placed with Father's parents. DCS referred Mother for home-based therapy, home-based casework, and supervised visitation. Mother refused to meet with the home-based casework provider, and the provider closed the referral as unsuccessful. Mother initially met with the home-based therapist, but she later refused because she thought that the therapist provided too many details to DCS. During supervised visits, Mother was confrontational with providers, and she also spoke to the Children about their placement in a negative way. Eventually, Mother refused to continue supervised visits, and the referral was closed. In addition, Father refused to participate in Fatherhood Engagement or the Abuse Awareness and Accountability Program.
[¶6] The fact-finding hearing began on July 10, continued on August 28, and concluded on September 11. Evidence was presented that Mother largely complied with services by June, but there was also substantial testimony about her noncompliance and noncooperation before then. Also, a DCS supervisor testified that one night in mid-June-the same day as a meeting where Mother said she and Father "don't have anything to do with one another, that she doesn't want anything to do with him"-the supervisor saw Mother and Father shopping together at Walmart. Id. at 151-52. Mother testified that her homebased caseworker allowed her to go shopping with Father, but the DCS supervisor was concerned about the ongoing contact.
[¶7] After the hearing, the trial court issued an order finding the Children to be CHINS. The court found, among other things, that (1) "there has been a longstanding history of domestic violence between the parents, including in the presence of their minor children," (2) "the children have been emotionally harmed by witnessing multiple occasions of domestic violence in the home," (3) the parents "have been in and out of a relationship over the course of many years," and (4) "the coercive intervention of the court is necessary to ensure that both parents receive services aimed at reducing the risk of having the children exposed to future domestic violence[.]" Appellant's App. Vol. II pp. 115-16. Following a dispositional hearing in October 2023, the court issued an order setting forth various requirements for Mother and Father.
[¶8] Mother now appeals. On February 12, 2024, with this appeal in its early stages, the trial court issued an order terminating DCS's wardship of the Children and closing the CHINS cases, finding that Mother had completed all services and that Father had started domestic-violence services. This development doesn't render Mother's appeal moot, however, given that a CHINS finding can have harmful collateral consequences for a parent. See In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014), reh'g denied.
Discussion and Decision
[¶9] Mother contends the evidence is insufficient to support the trial court's determination that the Children were CHINS. We will reverse a CHINS adjudication only upon a showing that the decision was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). We consider only the evidence that supports the trial court's decision and all reasonable inferences that can be drawn therefrom, and we will not reweigh the evidence or judge the credibility of the witnesses. Id.
[¶10] DCS alleged that the Children were CHINS under Indiana Code section 31-34 1-1, which 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:
(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.
An adjudication under this statute "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 at 1287.
[¶11] Mother argues that while the Children may have been in need of services when the cases were filed in February 2023, they didn't need any services as of the last day of the fact-finding hearing in September 2023. She asserts that, by that time, she and Father "were permanently separated from one another," she "was in a new, committed relationship," "no further acts of domestic violence had occurred," she "had obtained new housing and transportation," she "had her 14-year-old son living in her home without any concerns," she "had remedied any concerns that had led to the children's removal," and she "was voluntarily engaged in all services DCS requested her to do, including home-based casework, individual therapy, and regular visits with her children." Appellant's Br. pp. 17-18. Mother correctly notes that a court determining CHINS status under Section 31-34-1-1 must consider the family's condition not just when the case was filed but also when it is heard. In re D.J., 68 N.E.3d 574, 580 (Ind. 2017).
[¶12] While the situation had certainly improved by the time the fact-finding hearing ended, there is substantial evidence supporting the trial court's conclusion that continued State involvement was appropriate. First, even though Mother and Father weren't in a relationship during the fact-finding hearing, they had been in and out of a violent relationship for many years and had been seen together in June 2023. As such, when the fact-finding hearing concluded three months later, there was still a very real possibility that Mother and Father would continue seeing each other and the Children would be exposed to further domestic violence.
[¶13] Second, though Mother complied with services at the time of the fact-finding hearing, she had a long history of noncompliance and noncooperation. Most recently, she wouldn't let DCS conduct an initial assessment after the domesticviolence incident in December 2022, resisted DCS's efforts even after a court order compelling her cooperation, and failed to comply with services for several months after the CHINS petitions were filed. As DCS notes, Mother wasn't fully participating in services until mid-June 2023, less than a month before the fact-finding hearing began. Given this history, it was entirely reasonable for the trial court to conclude that Mother was unlikely to stay on track without continued oversight by DCS and the court.
[¶14] Mother has failed to show that the trial court's CHINS adjudication was clearly erroneous.
[¶15] Affirmed.
Weissmann, J., and Foley, J., concur.