Opinion
23A-JC-2928
06-14-2024
In the Matter of G.M. (Minor Child), Child in Need of Services, and C.C. (Mother) Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT BLAIR TODD LAW OFFICE OF BLAIR TODD WINAMAC, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Pulaski Circuit Court The Honorable Mary Welker, Judge Trial Court Cause No. 66C01-2307-JC-10
ATTORNEY FOR APPELLANT BLAIR TODD LAW OFFICE OF BLAIR TODD WINAMAC, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL MONIKA PREKOPA TALBOT DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Kenworthy Judge
Case Summary
[¶1] C.C. ("Mother") appeals the trial court's adjudication of her son, G.M. ("Child"), as a child in need of services ("CHINS"). Mother claims the trial court's decision is clearly erroneous because the Indiana Department of Child Services ("DCS") did not prove the coercive intervention of the court is needed. We affirm.
Facts and Procedural History
[¶2] Mother and K.M. ("Father") are the parents of Child, who was born in July 2022. Mother and Father are not married but resided together. In the first six months of 2023, Mother called police to the residence between five and ten times because she "was being harassed [by Father] or . . . was unsafe" and "believed it was best for [them] to be separated, and the cops came and made [Father] leave." Tr. Vol. 2 at 63. In June, Mother obtained a protective order against Father, but she "dropped" it soon after. Id. at 23-24.
[¶3] In July, Mother and Father got into an argument. In Mother's subsequent report to police, she said Father threatened to harm her while Father was holding Child. Fearing for her safety, Mother tried to leave but Father pulled her down by her hair. During the struggle, Father "dropped" Child on the ground. Id. at 10. Father pinned Mother down and put his arm around her throat, "squeezing it to the point where . . . it was hard for her to breathe." Id. Father took Mother's phone from her and broke it. When Mother managed to get away, she went to the Sheriff's Department to make a report. She did not take Child with her. Officer Robert Hartley took the report and observed Mother had red marks on her neck and right shoulder/breast area. Mother declined to fill out a domestic battery affidavit, however, and Officer Hartley took her home. Father was there with Child. Officer Hartley did not observe any injuries to Child. Although Father denied touching Mother, Officer Hartley arrested him. Father was charged with domestic battery and a no contact order was issued in the criminal case prohibiting Father from contacting Mother or Child.
[¶4] The domestic violence incident was reported to DCS. DCS asked Mother to take Child to the hospital for an examination. No injuries were found. DCS Family Case Manager Jaclyn Ricker spoke with Mother at the hospital. Ricker had done previous assessments involving Child with the "common theme" of domestic violence between Mother and Father. Id. at 21. Mother denied Child was dropped, telling Ricker that Father "placed/tossed him onto the ground." Id. at 23. Mother confirmed to Ricker that Father tried to choke her. Mother also acknowledged the family had previously been involved with law enforcement and DCS because of domestic violence and she had signed safety plans agreeing to ensure Child's safety. Mother told Ricker she did not want to return to a relationship with Father, but a few days later, Mother was found outside the jail talking to Father through a window. Mother said Father called and asked her to bring Child to the jail so Father could see him. Father was charged with invasion of privacy for violating the no contact order in his criminal case.
[¶5] Ricker spoke with Father at the county jail. Father admitted he and Mother had a verbal altercation but denied touching Mother. He also denied dropping Child, saying he "placed [Child] on the ground" as he and Mother were arguing. Id. at 25.
[¶6] The parties accused each other of methamphetamine use. Mother denied using substances and refused to take a drug screen when Ricker asked; Father admitted to methamphetamine use in the past but claimed he stopped using when Child was born.
[¶7] DCS did not detain Child but decided to pursue an in-home CHINS placement and provide family preservation services. Ricker explained DCS believed this was appropriate because of "the multiple incidences of domestic violence reported to not only [DCS] but to law enforcement[.]" Id. at 26. Both Mother and Father had signed safety plans, "yet the domestic violence incidences continue to occur, and continue to occur in the presence of [Child], this most recent time with him actually directly involved in the incident. Whether he was dropped, tossed, or sat, he was in the middle of the incident of domestic violence." Id. DCS filed a petition on July 20 alleging Child was a CHINS "[d]ue to the concerns of domestic violence and concern for the safety and wellbeing of [Child]." Appellant's App. Vol. 2 at 12.
[¶8] DCS put family preservation services in place through SAFY. Those services included home-based casework, employment assistance, individual therapy, and parenting services. SAFY paid Mother's overdue rent and utilities and helped Mother develop a budget. Mother was fully engaged in services in July and August. Then in September, after SAFY told Mother it could not pay her rent again, Mother stopped participating. She moved to another town and was living with a male "friend of our family." Tr. Vol. 2 at 59. Mother claimed the home was clean and she and Child had their own room and plenty of food- "[w]e have no issues at the home." Id. Mother did not inform DCS of her new address, however, and DCS was unable to contact her or see Child for at least forty-five days.
[¶9] Father pleaded guilty to the domestic violence charge in late September. He was sentenced to time served and the no contact order was terminated. A couple of weeks later, Mother and Father met at their former residence to gather their belongings but "could not get along that day." Id. at 58. Mother felt she was "being harassed" and called 9-1-1. Id. Yelling could be heard in the background of the call. Police were dispatched to the residence and gave Father a no-trespass order. Child was not present.
[¶10] The trial court held a fact-finding hearing in late October. Mother testified that during the "verbal disagreement" in July, Father did not drop or toss Child, but "did sit [him] down on the floor" in the house and came outside to stop her from leaving. Id. at 56-57. She claimed that was the only time a disagreement turned physical. She did not take Child with her to the Sheriff's Department because she believed Child was safe with Father and thought if she went in the house to get him, she might not get back out. She said she did not think Child was in need of services because she is "a very good mother" and Father is "a great dad," but "it's best if we're separated." Id. at 61. She said she had no desire to renew her relationship with Father and believed her willingness to call police if Father put her or Child at risk minimized or eliminated domestic violence concerns.
Father was present at the fact-finding hearing but admitted Child is a CHINS. He does not participate in this appeal.
[¶11] Brenda Catchings, a DCS supervisor, testified DCS believed Child was still in need of services because "there was some concern[] in regards to [Mother] being able to maintain a stable environment and having a steady income in order to do that for [Child.]" Id. at 45. Domestic violence is "[v]ery much" a concern because children sometimes "get caught in the crossfire" and here, it was documented Child was dropped. Id. Ongoing or repeated incidents of domestic violence are "[m]ost definitely" a concern because if parents cannot work things out without resorting to violence, "that impedes the safety of the child." Id. at 46.
[¶12] DCS argued Child is a CHINS because the "repeat instances" show Mother "keeps putting herself in the same position . . . endangering the safety and wellbeing" of Child. Id. at 76. Mother, on the other hand, argued Child is not currently a CHINS because "she has dealt with the problem and taken appropriate actions to protect both herself and [Child]." Id. at 79.
[¶13] The trial court ruled from the bench, finding Child was a CHINS. The court explained:
I find it interesting that the report that Mother gave to Officer Hartley . . . is so completely different from what she testified today, and even different from what she told DCS. So now not only is Father not dropping the child during this incident, he's placing the child gently on the floor in the house, and then they go outside and fight. I don't find that Mother is credible in her testimony. Let me just say that so that we are clear on that.Id. at 79-80. The court found Mother had not taken appropriate steps to protect herself and Child from Father because she re-engaged with him multiple times. The court was also concerned Mother "has attempted to avoid DCS" and had recently put herself and Child "at the complete mercy of yet another man that we don't know anything about." Id. at 81. The court found it would take the court's intervention to get appropriate services and adequate protections in place. Id. at 80-81.
[¶14] The trial court later issued a written order adjudicating Child a CHINS as defined in Indiana Code Section 31-34-1-1:
14. The Court has no reason to believe the ongoing conduct, including domestic violence, between Mother and Father will cease; and without a protective order and services, the Court believes the altercations will continue;
* * *
16. This ongoing pattern coupled with a refusal of services which could assist Mother in providing a safe home for the subject child presents a serious danger to this very young child's physical and/or mental condition;
17. Unstable housing adds to the danger to [Child];
1[¶8]. Mother has refused services and the coercive intervention of the Court is necessary if Mother is going to reengage in services.Appellant's App. Vol. 2 at 16. The trial court subsequently held a dispositional hearing and issued a dispositional order continuing the in-home CHINS with a permanency plan of reunification.
In the written fact-finding order, the trial court noted there were "changed statements at the hearing but finds the original report more credible." Id. at 15. The trial court also noted Mother's "increasing minimization" of the events as the case progressed "is not unexpected with the background of domestic violence." Id. at 16.
CHINS Standard of Review
[¶15] The purpose of a CHINS inquiry is to protect children, not punish parents. In re K.D., 962 N.E.2d 1249, 1255 (Ind. 2012). When we review a trial court's determination that a child is in need of services, "[w]e neither reweigh the evidence nor judge the credibility of the witnesses." Id. at 1253. Instead, "[w]e consider only the evidence that supports the trial court's decision and reasonable inferences drawn therefrom." Id.
[¶16] The trial court here entered findings of fact and conclusions thereon sua sponte following the fact-finding hearing. In such case, we review issues covered by the findings with a "two-tiered standard of whether the evidence supports the findings, and whether the findings support the judgment." In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). We review any issues not covered by the findings under the general judgment standard, meaning we will affirm the judgment if it can be sustained on any legal theory supported by the evidence. Id. We will reverse a CHINS determination only if it is clearly erroneous. In re D.J., 68 N.E.3d 574, 578 (Ind. 2017). Clear error is "that which leaves us with a definite and firm conviction that a mistake has been made." Masters v. Masters, 43 N.E.3d 570, 575 (Ind. 2015) (quoting Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)).
No statute expressly requires formal findings in a CHINS fact-finding order and none of the parties requested findings under Trial Rule 52(A). Mother does not raise any issue with respect to the dispositional order.
Sufficient evidence supports the trial court's CHINS determination.
[¶17] Mother challenges the sufficiency of the evidence to support the trial court's determination Child is a CHINS. Mother claims it was clear error for the trial court to find the coercive intervention of the court was required because that finding is "based on circumstances as they no longer exist and fails to recognize the actions taken by Mother to rectify the concerns of the Court." Appellant's Br. at 12.
[¶18] In a CHINS proceeding, the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. See K.D., 962 N.E.2d at 1253; Ind. Code §§ 31-34-1-1 to -11 (describing circumstances under which a child is a CHINS); I.C. § 31-34-12-3 (1997) (imposing preponderance standard). Here, the trial court adjudicated Child a CHINS under Indiana Code Section 31-34-1-1, the general neglect provision. Our Supreme Court has interpreted this provision to require proof of "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." S.D., 2 N.E.3d at 1287.
[¶19] When determining whether a child is a CHINS under Section 31-34-1-1, and particularly when determining whether the coercive intervention of the court is necessary, the court "should consider the family's condition not just when the case was filed, but also when it is heard." Id. at 1290. This "avoids punishing parents for past mistakes when they have already corrected them." D.J., 68 N.E.3d at 581.
[¶20] Mother testified she did not intend to reunite with Father and claims she has therefore taken the necessary steps to address the domestic violence issues endangering Child without the court's intervention. Mother's argument relies on her own testimony about her actions during this case and her current situation, but the trial court expressly found Mother was not a credible witness. The trial court is "best positioned to judge the credibility of [the] witnesses [and] is free to credit or discredit testimony[.]" Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011). We cannot reassess witness credibility on appeal. See K.D., 962 N.E.2d at 1253.
[¶21] Evidence from the fact-finding hearing supports the trial court's conclusion that Child needs care unlikely to be provided without the coercive intervention of the court. A child's exposure to domestic violence can support a CHINS finding. See In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). Here, DCS's involvement began with a domestic violence incident between Mother and Father. Not only was Child exposed to that incident, but he was dropped during it. Despite Father dropping Child and trying to strangle Mother, Mother felt Child was safe with Father and left him in Father's care. Mother confirmed she and Father had been in repeated altercations requiring intervention by law enforcement since Child's birth. Mother also acknowledged she had previously signed safety plans and had obtained-but promptly dropped-a protective order against Father. And although Mother claimed she desired to end her relationship with Father, she resumed contact with him multiple times during this case, including just one week before the fact-finding hearing. She also stopped participating in services designed to help her and failed to inform DCS of her contact information when she moved. This demonstrates a lack of commitment to maintaining a safe environment for Child.
[¶22] DCS and the trial court are not required to wait until a tragedy occurs to intervene. See In re K.B., 24 N.E.3d 997, 1003-04 (Ind.Ct.App. 2015). Here, nothing established Mother had adequately addressed her involvement in a volatile relationship with a man who became violent in Child's presence at least once. She refused assistance DCS offered and gave no assurance she would keep Child safe without court intervention. Mother's argument to the contrary is a request for us to reweigh the evidence in her favor, a request we must decline. See K.D., 962 N.E.2d at 1253.
Conclusion
[¶23] We cannot say the CHINS adjudication is clearly erroneous, and we affirm the trial court's judgment.
[¶24] Affirmed.
May, J., and Vaidik, J., concur.