Opinion
24A-JC-1230
12-03-2024
In the Matter of E.W. (Minor Child), Child in Need of Services, and E.A. (Father) Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner and Kids' Voice of Indiana, Appellee-Guardian Ad Litem
ATTORNEY FOR APPELLANT Don R. Hostetler Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Marjorie Lawyer-Smith 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable A. Richard Blaiklock, Judge Trial Court Cause No. 49D15-2312-JC-10917
ATTORNEY FOR APPELLANT Don R. Hostetler Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
Judges Mathias and Brown concur.
MEMORANDUM DECISION
Kenworthy, Judge.
Case Summary
[¶1] Following an incident of domestic violence in which E.A. ("Father") strangled L.W. ("Mother") and discharged a gun in the presence of E.W. ("Child"), the trial court adjudicated Child a Child in Need of Services ("CHINS"). Father presents several issues for our review, which we consolidate and restate as: When ordering Father to participate in domestic violence services, did the trial court fundamentally err or deny Father due process by taking judicial notice of Father's involvement in prior CHINS cases and failure to complete services in those cases? We affirm.
Facts and Procedural History
[¶2] Father and Mother (collectively, "Parents") have several children together, including Child, born in October 2023. In December, when Child was just shy of two months old, Officer Mary Alexander of the Beech Grove Police Department responded to a report of a domestic disturbance at Mother's apartment. According to Officer Alexander, police had responded to disturbances at the home at least three other times in the past month. En route, dispatch advised police the male suspect had fired a gun inside the home.
[¶3] On arrival, the officer learned Father and Mother had engaged in a physical altercation in the presence of Child. During the struggle, Father strangled Mother for five to seven seconds and then pulled out a gun to intimidate Mother. The gun discharged but no one was injured. Father then left the home with Child but returned while police were on scene. When searching the apartment, police located bullet fragments and a bullet in the kitchen. A neighbor reported to police she often overheard Father "beating" Mother. Appellant's App. Vol. 2 at 29. Police arrested Father on charges of criminal recklessness, unlawful carrying of a handgun with a prior felony conviction, and strangulation. During the arrest, Parents began arguing again while Mother was holding Child, and police had to separate Parents.
[¶4] The Department of Child Services ("DCS") filed a verified petition alleging Child was a CHINS and a preliminary inquiry ("PI") report. Along with the December domestic violence incident, those documents showed Father and Mother had pending CHINS cases pertaining to Child's older siblings, the older children had been removed from the home and placed in foster care, and Parents had not successfully completed services in those cases.
[¶5] As to Child, Father entered a "Deny and Submit" agreement in March 2024. Id. at 85-86. Under the agreement, Father denied the allegations in the CHINS petition but did not object to the trial court's consideration of all information contained in the CHINS petition and PI report when making its CHINS determination. Father waived his right to a contested fact-finding hearing on the CHINS determination, but the parties reserved for a separate, contested dispositional hearing whether Father should participate in a domestic violence assessment. The trial court adjudicated Child a CHINS.
Mother waived her right to a fact-finding hearing and did not contest Child is a CHINS. Mother is not a party to this appeal.
[¶6] The trial court held a dispositional hearing on April 23, 2024, at which Father was represented by counsel. At the outset, the trial court admitted a predispositional report summarizing the case history. On whether a domestic violence assessment should be ordered, DCS argued the PI report established there had been a new incident of domestic violence between Father and Mother. DCS also noted Father had been ordered to complete a domestic violence assessment in August 2022 as part of the CHINS cases involving Child's two older siblings but had not completed it. Father argued there was no rational basis to order a domestic violence assessment because he denied the allegations in the CHINS petition and the evidence from the prior CHINS case was not admitted in this case. When the trial court asked Child's guardian ad litem ("GAL") whether she was in favor of a domestic violence assessment, the following exchange took place:
[GAL]: Your Honor, I am in favor of a domestic violence assessment just due to . . . undocumented incidents that happened in the previous case as well that [were] never addressed.
THE COURT: Ok. Which I think I can take and do take judicial notice of, and even with respect to the ones here, I think there's a rational basis. So I am going to order that.Tr. Vol. 2 at 7. Father then tried to speak to the court, but his attorney advised him, "if you have something to share with the court, I would prefer if we could discuss it after and I could file a written motion for the court if it so needs to be heard." Id. at 8. Father remained silent. The trial court informed Father he could file a motion after speaking with counsel, although counsel did not later do so.
[¶7] In its written order, the trial court found a new incident of domestic violence had occurred and Father had "not yet engaged the domestic violence services . . . ordered in August 2022, as to his older children, with whom he and [Mother] also have CHINS matters before this Court which have been open since September 2021." Appellant's App. Vol. 2 at 14. The trial court found there was a rational basis to order domestic violence services and ordered Father to complete a domestic violence assessment, among other services.
The trial court did not fundamentally err or deny Father due process by taking judicial notice of its own records and facts readily determined from those records.
[¶8] Father argues the trial court erred by taking judicial notice of the prior CHINS cases involving Child's older siblings and the fact Father had not completed domestic violence services ordered in those cases. Generally, we review a trial court's decision to take judicial notice of a matter for abuse of discretion. Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016). But Father did not object when the trial court took judicial notice of the prior CHINS case records and certain facts in them. A party's failure to object to an alleged trial error results in waiver of that claim on appeal. In re Eq.W., 124 N.E.3d 1201, 1214 (Ind. 2019). But on rare occasions, appellate courts may analyze an otherwise procedurally defaulted claim under the fundamental error doctrine. Id. The fundamental error exception is extremely narrow and available only when the record reveals a blatant violation of basic principles, the harm or potential for harm cannot be denied, and the violation is so prejudicial to a party's rights as to make a fair proceeding impossible. See id. at 1214-15. We review the alleged misconduct in the context of the proceeding as a whole and all the relevant information presented to the trial court. Id. at 1215. Moreover, "fundamental error in the evidentiary decisions of our trial courts is especially rare." Merritt v. State, 99 N.E.3d 706, 709 (Ind.Ct.App. 2018), trans. denied.
[¶9] Under our evidence rules, a trial court may judicially notice facts "not subject to reasonable dispute" and facts "readily determined from sources whose accuracy cannot reasonably be questioned." Ind. Evidence Rule 201(a)(1)(A)-(B). A court may also take judicial notice of the existence of any Indiana court record. Evid. R. 201(a)(2)(C).
[¶10] Here, the trial court took judicial notice of its own records in prior CHINS cases involving Father and certain facts established by them. Father contends this was an error of law, citing Woods v. State for the proposition that "a trial court may not take judicial notice of its own records in another case previously before the court even on a related subject and related parties." Appellant's Br. at 10 (quoting 654 N.E.2d 1153, 1155 (Ind.Ct.App. 1995)). Although that was the law prior to 2010, Evidence Rule 201 was amended effective January 1, 2010, and now permits a trial court to take judicial notice of "records of a court of this state," as it did here. Evid. R. 201(a)(2)(C); see also Horton, 51 N.E.3d at 1160. In addition, the fact Father did not complete services in prior CHINS matters is readily determined from the case records and not reasonably disputed. Court records are presumed to be sources whose accuracy cannot reasonably questioned. See Horton, 51 N.E.3d at 1161. As such, the trial court did not err, much less fundamentally, by taking judicial notice of the case records and facts determined from them.
[¶11] But even if the trial court erred by judicially noticing the records and facts in the prior CHINS cases, there was sufficient evidence in the CHINS petition, PI report, and predispositional report to support the trial court's order that Father participate in domestic violence services. A trial court has broad discretion in determining which programs and services a parent must participate in following a CHINS determination, so long as the requirements relate to some behavior or circumstances revealed by the evidence. In re K.D., 962 N.E.2d 1249, 1258 (Ind. 2012). Evidence Father strangled Mother and discharged a gun in the home in the presence of Child was sufficient to support the trial court's finding that a new incident of domestic violence occurred. On that evidence alone, the trial court had a rational basis to order Father to participate in domestic violence services in this case.
[¶12] Father also contends the trial court deprived him of due process, again by improperly taking judicial notice of the prior CHINS cases and relying on those records and facts to impose requirements on him. Due process encompasses the opportunity to be heard at a meaningful time and in a meaningful manner. Id. at 1257. The process due in a CHINS dispositional hearing turns on the balancing of three factors: "(1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure." Id.
[¶13] Following a CHINS determination, a trial court conducts a dispositional hearing to consider, among other things, the "necessity, nature, and extent of the participation by a parent . . . in the program of care, treatment, or rehabilitation for the child[.]" Ind. Code § 31-34-19-1 (2015). After the hearing, the trial court issues a dispositional order setting forth the "need for participation by the parent, guardian, or custodian in the plan of care for the child" and "[f]amily services that were offered and provided to . . . the child's parent, guardian, or custodian[.]" I.C. § 31-34-19-10(a)(2) &(4) (2015).
[¶14] Here, Father waived a contested fact-finding hearing on the CHINS determination and did not object to the trial court's admission and consideration of the verified CHINS petition and PI report, which became a part of the record. The trial court then held a contested dispositional hearing to determine whether Father should be required to participate in domestic violence services. At the hearing, Father was represented by counsel and had notice and opportunity to present evidence and argument. Father did not object to the admission of the predispositional report. After hearing the parties' arguments, Father indicated he wanted to speak. On the advice of his attorney, he remained silent. The trial court then offered him the opportunity to submit any follow-up through his attorney after the hearing.
[¶15] Still, Father argues the trial court denied him the opportunity to rebut the evidence against him by taking judicial notice of the prior CHINS cases. First, there is no indication the trial court relied on any contested allegations that formed the basis of a domestic violence services order in the prior CHINS cases. Rather, the trial court judicially noticed the fact of the prior CHINS cases and the fact Father had not yet engaged in domestic violence services ordered in August 2022. Father's argument also ignores evidence of the new domestic violence incident giving rise to this case. The allegations in the verified CHINS petition, PI report, and predispositional report-all admitted without Father's objection-were ample evidence to support the trial court's finding that a new incident of domestic violence occurred in December. Considering the procedures and protections provided to Father, Father's argument he was denied due process of law when the trial court ordered him to complete a domestic violence assessment after a contested dispositional hearing lacks merit.
Conclusion
[¶16] The trial court did not fundamentally err or deny Father due process by judicially noticing records and facts in prior cases, particularly where there was new evidence to support the trial court's order requiring Father to participate in domestic violence services.
[¶17] Affirmed.
Mathias, J., and Brown, J., concur.