Opinion
24A-JC-1390
12-06-2024
In re: the Matter of H.H. (Minor Child), Child in Need of Services v. Indiana Department of Child Services, Appellee-Petitioner and K.H. (Father), Appellant-Respondent
ATTORNEY FOR APPELLANT CARA SHAEFER WIENEKE WIENEKE LAW OFFICE, LLC BROOKLYN, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL INDIANAPOLIS, INDIANA 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Kaleel Ellis, Judge Pro Tempore Trial Court Cause No. 84C01-2403-JC-244
ATTORNEY FOR APPELLANT CARA SHAEFER WIENEKE WIENEKE LAW OFFICE, LLC BROOKLYN, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL INDIANAPOLIS, INDIANA MONIKA PREKOPA TALBOT DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
May, Judge
[¶1] K.H. ("Father") appeals the adjudication of his child, H.H. ("Child") as a Child in Need of Services ("CHINS"). Father makes several arguments, which we restate as:
1. Whether the trial court's findings regarding a domestic violence incident between D.W. ("Mother") and Father were supported by the evidence; and
2. Whether the trial court's findings support its conclusion that Child was seriously endangered and her needs were unmet.
We affirm.
Facts and Procedural History
[¶2] Mother and Father are the parents of Child, born October 1, 2018. Mother and Father were not married. Child lived with Mother. From 2022 to 2024, police visited Father's residence five times because of custody exchange disputes between the parties. The disputes occurred primarily because one of the parties refused to relinquish Child to the other.
Mother admitted Child was a CHINS and does not participate in this appeal.
The original child custody and child support order is not in the record, so we do not know the exact arrangement between the parties.
[¶3] On February 19, 2024, Mother, Mother's mother, and Mother's older daughter arrived at Father's house to retrieve Child from Father at the end of his parenting time. Mother and Father engaged in a verbal altercation regarding whether Mother arrived too early for the exchange. While they were arguing, Father pushed Mother off his porch and she sustained an injury to her ankle. Mother's mother called the police. Mother then grabbed Father's Ring doorbell camera and threw it in Father's yard. Police arrived and "served [her] a ticket" for criminal mischief. (Tr. Vol. II at 86.)
[¶4] On February 20, 2024, DCS Family Case Manager Amber Hovey ("FCM Hovey") received a report regarding the February 19, 2024, incident. FCM Hovey investigated the situation by first going to Father's house because Child was still with Father. She asked law enforcement to join her. The officer on the scene asked Father "what was going on." (App. Vol. II at 14.) Father told the officer that Child was "scared of [Mother] and he wasn't giving [Child] back." (Id.) The officer told Father that, if he was in violation of the trial court's custody order, he could be charged with kidnapping. Father told the officer he "didn't care" and shut the door in the officer's face. (Id.) Father opened the door again and told the officer he was not going to give Child to Mother. The officer told Father that he would be filing a report of custody interference, and Father again told the officer he did not care and slammed the door in the officer's face.
[¶5] The officer told Mother to come to the police station the next day to get a copy of the custody interference report. However, the officer told Mother that if Father refused to give Child to Mother the next day, there was "not anything that [law enforcement] could do." (Id.) Father eventually allowed FCM Hovey into his home and told her that he was not releasing Child to Mother. When FCM Hovey was talking to Mother about the February 19, 2024, incident, Mother reported that Father was "clearly using methamphetamine again because he gets like that when using meth." (Id.)
[¶6] Father finally released Child to Mother two days later on February 22, 2024. On February 28, 2024, Mother attempted to pick up Child at Father's house at the end of his regularly scheduled parenting time. Father again refused to allow Child to leave with Mother.
[¶7] At approximately 4:00 a.m. on February 29, 2024, Mother's neighbors knocked on her door to report there was a fire in Mother's front yard. The fire was approximately "6-8 feet wide and approximately 30 feet long" but did not reach Mother's house. (Id. at 15.) Mother reviewed security camera footage from her Ring doorbell camera and another security camera located on her property.
[¶8] Mother's Ring doorbell camera captured "someone walking passed [sic] [her] house, walking back toward the tree and taking a cup or something and splash[ing] it in [her] yard." (Tr. Vol. II at 46.) The person then ran away. Mother noted the person who ran away was wearing a "steel toed boot" with a distinctive tip[.]" (Id. at 70.) Mother identified the boots as the same kind Father wore. Additionally, she observed the person's hairline, which was a "widow's peak[,]" and the same kind of hairline Father had. (Id.) Finally, Mother indicated the person in the video was about the same height and build as Father and had a similar gait. The person crossed the street and Mother saw a Nissan vehicle, which could have been a "Rogue" or a "Murano[.]" (Id. at 61.) Father drove a Nissan Murano. Mother saw the vehicle drive away from the scene in the direction of Father's house. Mother called the police, who arrived and took a police report.
[¶9] Later on February 29, 2024, FCM Hovey arrived at Mother's house to see the damage done by the fire. She could still smell gasoline in the area. She spoke to law enforcement, who told her "there [was] a strong belief" that Father was the person responsible for the fire. (App. Vol. II at 15.) FCM Hovey then looked into Father's criminal history and discovered he had been convicted of several battery and drug-related offenses.
[¶10] On March 1, 2024, FCM Hovey received approval from DCS to remove Child from Father's care "due to the safety concerns regarding [Father's] recent arson attempt on [Mother's] home." (Id. at 16.) Another FCM accompanied FCM Hovey to Father's home. When they arrived, they observed Father "standing on his back porch holding a gun of some sort." (Id.) Father then entered the front yard, and "looked up and down the street, as if he was looking for something or someone." (Id. at 17.) FCM Hovey called the police.
[¶11] When officers arrived at Father's house, Father went inside his house and "slammed" the door. (Tr. Vol. II at 116.) He refused to allow officers to enter the home to retrieve Child and would only communicate via the Ring doorbell camera. He told officers that "[j]udges don't have the authority to order him to do anything." (App. Vol. II at 17.) Father told FCM Hovey that she "ha[d] no proof that he tried burn [Mother's] house down" but he did not deny involvement. (Id.) Officers requested an "Access Order" to require Father to allow them to remove Child from his care. (Id.) Father again told FCM Hovey that "DCS was not taking [Child.]" (Id.) Officers ultimately received an Access Order, entered Father's house, removed Child from his care, and placed Child in Mother's care, where Child has remained ever since.
[¶12] On March 5, 2024, DCS filed a petition alleging Child was a CHINS because Father pushed Mother in Child's presence and destroyed the evidence of that interaction by allegedly erasing any footage of the incident; Father tried to burn Mother's house down while Mother and two of her other children were inside; Father may have left Child home alone or brought Child with him during the arson incident; DCS suspected Father was using illegal substances based on his erratic behavior but Father refused a drug screen; Father exhibited erratic behavior when DCS and law enforcement removed Child from his care; Father exhibited "escalating violent behavior" (id. at 27); and Father had a "significant and concerning criminal history." (Id.) On the same day that DCS filed its petition, the trial court held its initial hearing. Both Mother and Father denied Child was a CHINS.
[¶13] The trial court held a fact-finding hearing on April 15, 2024. During the hearing, Mother admitted Child was a CHINS. Mother and FCM Hovey testified regarding the incident at Father's house when Father pushed Mother and Mother threw Father's Ring doorbell camera, and also about the arson incident. Father refused to answer questions about either incident and asserted his Fifth Amendment right against self-incrimination. FCM Hovey reported to the trial court that, since the arson incident, Father "has changed the color of vehicle . . . to a different color" and, despite the fact that the license plate was still registered to a Nissan Murano, Father told FCM Hovey the vehicle was a "Keno." (Tr. Vol. II at 118.) On April 26, 2024, the trial court adjudicated Child as a CHINS based on domestic violence between Mother and Father, Father's commission of arson on Mother's property, and Father's erratic behavior at the time of Child's removal.
[¶14] On May 14, 2024, the trial court held its dispositional hearing. It ordered Father to, among other things: complete psychological, substance abuse, parenting, and family reunification assessments and complete all recommendations for treatment stemming therefrom; participate in the Fatherhood Engagement program; not commit any acts of domestic violence; obey the law; refrain from illegal substance use; obtain and maintain a legal source of income; obtain and maintain suitable housing; and visit with Child.
Discussion and Decision
[¶15] Because a CHINS proceeding is a civil action, DCS must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. Matter of N.E., 228 N.E.3d 457, 475 (Ind.Ct.App. 2024). DCS alleged Child was a CHINS pursuant to Indiana Code section 31-34-1-1, which states:
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.
[¶16] A CHINS adjudication focuses on the needs and condition of the child, rather than the culpability of the parent. N.E., 228 N.E.3d at 476. The purpose of a CHINS adjudication is not to punish the parent but to provide proper services for the benefit of the child. Id. at 475. "[T]he acts or omissions of one parent can cause a condition that creates the need for court intervention." Id. at 476.
While we acknowledge a certain implication of parental fault in many CHINS adjudications, the truth of the matter is that a CHINS adjudication is simply that - a determination that a child is in need of services. Standing alone, a CHINS adjudication does not establish culpability on the part of a particular parent. Only when the State moves to terminate a particular parent's rights does an allegation of fault attach. We have previously made it clear that CHINS proceedings are "distinct from" involuntary termination proceedings. The termination of the parent-child relationship is not merely a continuing stage of the CHINS proceeding. In fact, a CHINS intervention in no way challenges the general competency of a parent to continue a relationship with the child.Matter of To.R., 177 N.E.3d 478, 485 (Ind.Ct.App. 2021) (quoting In re N.E., 919 N.E.2d 102, 105 (Ind. 2010)), trans. denied.
[¶17] When a trial court enters findings of fact and conclusions of law in a CHINS decision, we apply a two-tiered standard of review. In re Des. B., 2 N.E.3d 828, 836 (Ind.Ct.App. 2014). We consider first whether the evidence supports the findings and then whether the findings support the judgment. Id. We may not set aside the findings or judgment unless they are clearly erroneous. Id. Findings are clearly erroneous when the record contains no facts to support them either directly or by inference, and a judgment is clearly erroneous if it relies on an incorrect legal standard. Id. We give due regard to the trial court's ability to assess witness credibility and do not reweigh the evidence; we instead consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Id. We defer substantially to findings of fact but not to conclusions of law. Id. "We accept unchallenged findings as true." Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind.Ct.App. 2019)).
1. Findings Regarding Domestic Violence
[¶18] Father challenges the trial court's finding that a domestic violence incident occurred on February 19, 2024. The trial court found::
5) On that date and time, [Father] pushed [Mother] off the porch. [Mother] took [Father's] [R]ing camera and threw it on the lawn.
6) [Child] witnessed this incident in its entirety.
8) The above facts were established by credible, and unrebutted, testimony by [Mother].(App. Vol. II at 51.) Father contends the trial court's findings regarding the domestic violence incident are not supported by the evidence because "the police investigation failed to corroborate Mother's uncorroborated claim that Father pushed her after she tried to enter his home without permission." (Father's Br. at 10.)
[¶19] Father was not charged as part of the incident. However, Mother testified Father pushed her off the porch and FCM Hovey testified Mother's older daughter told FCM Hovey that Father pushed Mother off the porch. When asked about the incident, Father asserted his Fifth Amendment right against self-incrimination and refused to directly answer whether he pushed Mother. Father's argument is an invitation for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See In re Des. B., 2 N.E.3d at 836 (appellate court cannot reweigh the evidence or judge credibility of witnesses). The testimony from Mother and FCM Hovey support the trial court's findings.
2. Child Seriously Endangered or Needs Unmet
[¶20] Father also challenges the trial court's conclusion that Child was seriously endangered or that her needs were unmet based on the trial court's findings regarding a domestic violence incident between Mother and Father. As noted above, the evidence supports the challenged findings regarding this issue. There are also several other relevant findings that Father does not challenge and thus we accept them as true. See Henderson, 139 N.E.3d at 232 (unchallenged findings are accepted as true). These findings are:
7) Parenting time exchanges between [Father] and [Mother] have been fraught with argument and disagreement, often in the presence of [Child], even before these exchanges escalated into domestic violence.
9) [Mother] entered an admission on the record that [Child] is a Child in Need of Services because of the domestic violence between herself and [Father].
10) The court finds that exposure to domestic violence can endanger a child's emotional and mental health.
11) The court finds that services to address domestic violence are necessary to ensure the continued safety of [Child].(App. Vol. II at 51-2.) The trial court then concluded:
12) The court finds, by a preponderance of the evidence, that these services will not be completed without coercive intervention of the court. [Father] has made no effort to voluntarily engage in services and has not regularly engaged in communication with the Department of Child Services.
13) Testimony was offered by [FCM Hovey] that becoming a Child in Need of Services would be in [Child's] best interests so that services could be put in place to eliminate the domestic violence between her parents.
14) The court finds that the above facts, standing on their own, prove by [a] preponderance of the evidence that [Child] is a Child in Need of Services.(Id. at 52.)
[¶21] Father contends a "single dispute during a parenting time exchange" does not support the trial court's conclusion that Child was seriously endangered or her needs were unmet. (Father's Br. at 10.) However, a trial court need not wait until a tragedy occurs to declare a child a CHINS. In re A.H., 913 N.E.2d 303, 306 (Ind.Ct.App. 2009). Instead, the trial court adjudicates a Child a CHINS when the child is endangered by parental action or inaction. Id. Here, the trial court found Father pushed Mother off a step, injuring Mother, while in the presence of Child. The trial court also found exposure to domestic violence can emotionally and mentally harm a child. Father has been unwilling to take responsibility for his part in the domestic violence between him and Mother and he had not voluntarily engaged in services aimed at addressing domestic violence. Further, the trial court found that parenting time exchanges "ha[d] been fraught with argument and disagreement, often in the presence of [Child], even before these exchanges escalated into domestic violence." (App. Vol. II at 51.) Finally, Mother admitted Child was a CHINS based on domestic violence between her and Father. Therefore, we conclude Child was seriously endangered and her needs unmet based on those factors. See, e.g., Matter of N.E., 228 N.E.3d at 476-7 (child seriously endangered and needs unmet based on parents' domestic violence and refusal to participate in domestic violence services).
Father also challenges the trial court's findings regarding the arson that occurred on Mother's property and that the trial court found was perpetrated by Father. However, the trial court concluded the domestic violence incident and custody exchanges fraught with argument "standing on their own" were sufficient to adjudicate Child as a CHINS. (See App. Vol. 2 at 52.) Thus, the findings regarding the arson are superfluous, and any error therein is not grounds to reverse the adjudication. See, e.g., Matter of D.P., 213 N.E.3d 552, 561 (Ind.Ct.App. 2023) (superfluous findings, even if erroneous, are not a basis for reversal provided the trial court made other unchallenged findings), trans. denied.
Conclusion
[¶22] The evidence before the trial court supports its findings regarding the domestic violence incident between Mother and Father. Additionally, the trial court's findings support its conclusion that Child was seriously endangered and her needs were unmet. Accordingly, we affirm.
[¶23] Affirmed.
Tavitas, J., and DeBoer, J., concur.