Opinion
24A-JC-1508
12-03-2024
In the Matter of Ki.C., D.C., and Ka.C. (Minor Children), Children in Need of Services v. V.C. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT C. Matthew Zentz Zentz & Roberts, P.C. Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Natalie F. Weiss 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Stephen J. Koester, Judge The Honorable T. Grey Chandler, Magistrate Trial Court Cause Nos. 48C02-2401-JC-8 48C02-2401-JC-9 48C02-2401-JC-10
ATTORNEY FOR APPELLANT C. Matthew Zentz Zentz & Roberts, P.C. Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
Judges Brown and Kenworthy concur.
MEMORANDUM DECISION
Mathias, Judge.
[¶1] V.C. ("Mother") appeals the trial court's adjudication of her three minor children, Ki.C., D.C., and Ka.C. ("Children"), as Children in Need of Services ("CHINS") as well as the court's denial of her motion to modify custody. Mother raises two issues for our review, which we reorder and restate as follows:
1. Whether the trial court's denial of Mother's motion to modify custody is clearly erroneous.
2. Whether the trial court's adjudication of the Children as CHINS is clearly erroneous.
[¶2] We affirm.
Facts and Procedural History
[¶3] In 2018, Mother gave birth to Ki.C., and in 2020 she gave birth to D.C. and Ka.C. D.C.II ("Father") is the father of the Children. Mother and Father's history together included domestic violence and drug use, and their drug use "started [with] pain pills and then . . . went to heroin." Tr. Vol. 1, p. 106. After they had separated, in March 2023 Mother asked Father to take custody of the Children full time because she was "going into rehab" to "get off [of] Methadone." Id. at 107. Father agreed, and, in October, Mother and Father entered into an agreement in which he would have primary physical custody of the Children while Mother exercised parenting time on alternating weekends.
[¶4] Mother lived in several locations between March and October before moving in with her mother in Indianapolis. In early January 2024, Father dropped the Children off with Mother for her parenting time. Mother observed that D.C. and Ka.C. had significant bruising about their faces and other areas. Mother took the Children to a nearby hospital, and at that time the Indiana Department of Child Services ("DCS") became involved. Father met with a DCS family case manager at the hospital, and he admitted that he had struck D.C. as a purported punishment. Father also stated that some of D.C.'s bruises may have resulted from Father "rough housing" with D.C. Tr. Vol. 1, pp. 45-46.
[¶5] Law enforcement officers arrested Father, and the State later charged him with several felony counts, including Level 5 felony domestic battery against D.C. The trial court in Father's criminal cause entered a no-contact order against Father and for the protection of D.C.
[¶6] Meanwhile, DCS filed a petition alleging the Children to be CHINS on the basis of the suspected abuse by Father of D.C. The CHINS court placed the Children in Mother's care, and they have remained in her care throughout the CHINS proceedings. Father has participated in supervised visits with Ki.C. and Ka.C.
[¶7] Mother filed a motion for a temporary change in custody over the Children for the duration of the CHINS proceedings such that she would have sole legal and physical custody over them and Father would be restricted to supervised parenting time. However, in late January, Mother transported three-year-old Ka.C. to a nearby hospital after Ka.C. had ingested an unknown amount of THC while in Mother's care at Mother's residence. Ex. Vol. 1, p. 169; see also Tr. Vol. 1, p. 225. Further, Mother has been unemployed while living with her mother, and she relies on her mother for financial support.
[¶8] The trial court held a consolidated fact-finding hearing on DCS's CHINS petition and Mother's motion for the change in custody. Following that hearing, the court found in relevant part that modification of custody over the Children was not in the Children's best interests given Mother's history of drug use, Ka.C.'s ingestion of THC while in Mother's care, and Mother's ongoing housing and financial instability. The court further found that, absent a custody modification, Father legally remained the Children's primary caregiver. The court then adjudicated the Children to be CHINS after additionally finding that Father had committed domestic battery against D.C. and that Ki.C. and Ka.C. lived in the same household with D.C. at the time.
Father does not participate in this appeal.
1. The trial court's denial of Mother's motion to modify custody over the Children is not clearly erroneous.
[¶10] We initially address Mother's argument on appeal that the trial court erred when it denied her motion to modify custody over the Children. As our Supreme Court has explained:
The trial court entered findings of fact and conclusion[s] of law in its order denying modification of custody. Pursuant to Indiana Trial Rule 52(A), the reviewing court will "not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind. 2012) (internal quotation and citations omitted). Where a trial court enters findings sua sponte, the appellate court reviews issues covered by the findings with a two-tiered standard of review that asks 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) (citation omitted). Any issue not covered by the findings is reviewed under the general judgment standard, meaning a reviewing court should affirm based on any legal theory supported by the evidence. Id.
Additionally, there is a well-established preference in Indiana "for granting latitude and deference to our trial judges in family law matters." In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993). Appellate courts "are in a poor position to look at a cold transcript of the record[] and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their
testimony as it came from the witness stand, did not properly understand the significance of the evidence." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). "On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal." Id. "Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment." Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted).
The party seeking to modify custody bears the burden of demonstrating the existing custody should be altered. Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992) (citation omitted). Indeed, this "more stringent standard" is required to support a change in custody, as opposed to an initial custody determination[] where there is no presumption for either parent[,] because "permanence and stability are considered best for the welfare and happiness of the child." Id. (citation omitted).Steele-Giri v. Steele, 51 N.E.3d 119, 123-24 (Ind. 2016).
[¶11] Mother filed her motion to modify custody pursuant to Indiana Code section 31-30-1-13, which gives a trial court in a CHINS proceeding concurrent jurisdiction with proceedings in other Indiana trial courts to determine custody issues. Under that statute, the CHINS court may modify child custody "in accordance with applicable modification statutes." Ind. Code § 31-30-1-13(e) (2023). Indiana Code section 31-17-2-21, in turn, provides that a court "may not modify a child custody order unless: (1) the modification is in the best interests of the child; and (2) there is a substantial change in one . . . or more of the factors" relevant to determining the best interests of the child.
[¶12] Indiana Code section 31-17-2-21(b) further directs the court to consider the best-interests factors listed in section 31-17-2-8, which include the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent....
Thus, "[a] child custody determination is very fact-sensitive." Steele-Giri, 51 N.E.3d at 125.
[¶13] Here, the trial court denied Mother's motion to modify custody over the Children on the ground that such a modification would not be in the Children's best interests. In support of that conclusion, the trial court found that Mother has a history of drug use. That finding is supported by the record, including Mother's 2023 agreement with Father for him to have primary physical custody over the Children while Mother checked herself into rehab. The trial court also found that Ka.C.'s ingestion of an unknown amount of THC while in Mother's care, and after the initiation of the instant CHINS proceedings, weighed against Mother's request to modify custody. And the court further relied on Mother's ongoing housing and financial instability. Those findings are also supported by the record: between March and October 2023, Mother had several different residences; she then moved into her mother's residence in Indianapolis, where she shares a bedroom with all three Children; and she remains unemployed, relying on her mother for financial support.
[¶14] Accordingly, we cannot say that the trial court's conclusion that modification of custody over the Children is not in the Children's best interests is clearly erroneous, nor can we say that the evidence "positively require[d] the conclusion contended for" by Mother. Id. at 124 (quoting Kirk, 770 N.E.2d at 307). And Mother's arguments to the contrary simply seek to have this Court reweigh the evidence, which we will not do. We therefore affirm the trial court's denial of Mother's motion to modify custody.
2. The trial court did not err when it found the Children to be CHINS.
[¶15] We thus turn to Mother's argument that the trial court erred when it found the Children to be CHINS. This issue also invokes our clearly erroneous standard of appellate review. See In re D.J., 68 N.E.3d 574, 577-78 (Ind. 2017).
[¶16] As relevant here, Indiana Code section 31-34-1-2(b) provides that a child is a CHINS if the child is a victim of domestic battery committed by the child's parent, and the child needs care, treatment, or rehabilitation that the child is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court. Similarly, Indiana Code section 31-34-1-2(c) states that a child is a CHINS if the child lives in the same household as an adult who has committed domestic battery against another child who lives in the same household, and the child needs care, treatment, or rehabilitation that the child is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court. Further, Indiana Code section 31-34-12-4 creates a rebuttable presumption that a child is a CHINS where DCS demonstrates that the child is injured by a custodial parent and that the injury is not accidental.
[¶17] Mother's only argument on this issue on appeal is that she is a fit and willing parent to have custody over the Children and, as such, the coercive intervention of the court is unnecessary. As our Supreme Court has explained:
The point of a CHINS inquiry is to protect children, not to punish parents. To that end, the [coercive-intervention] element guards against unwarranted State interference in family life, reserving that intrusion for families where parents lack the ability to provide for their children, not merely where they encounter difficulty in meeting a child's needs. When determining CHINS status . . ., particularly the "coercive intervention" element, courts should consider the family's condition not just when the case was filed, but also when it is heard. Doing so avoids punishing parents for past mistakes when they have already corrected them.In re D.J., 68 N.E.3d at 580-81 (cleaned up).
[¶18] In support of her argument, Mother relies exclusively on our Court's opinions in In re S.A., 15 N.E.3d 602 (Ind.Ct.App. 2014) ("S.A. I"), clarified on reh'g, 27 N.E.3d 287 (Ind.Ct.App. 2015) ("S.A. II"), trans. denied. In S.A., mother gave birth to child while father was on deployment with the Navy. Before father had returned to Indiana, mother used heroin, and CHINS proceedings resulted. The trial court adjudicated child to be a CHINS and ordered mother to participate in services.
[¶19] Upon father's return, he established his paternity, sought a modification of custody, and requested to have the CHINS proceedings closed. He also volunteered that he had been diagnosed with PTSD. However, he had established local housing and employment, and he was visiting with child daily.
[¶20] The trial court denied father's requests and found that child continued to be a CHINS. As to father, the court found that he was a first-time parent who lacked parenting skills; that he had not been meaningfully involved in child's life until the CHINS proceedings; and that his PTSD was not "under control." S.A. I, 15 N.E.3d at 612.
[¶21] On appeal, we reversed the trial court's determination that child continued to be a CHINS upon father's return to Indiana. Id. We concluded that being a first-time parent is not a basis for a CHINS finding; that the court's reliance on father's deployment to conclude that father had not been meaningfully involved in child's life inappropriately emphasized circumstances that were no longer present; and that there was no basis in the record from which the trial court could have concluded that father's PTSD diagnosis required ongoing treatment. Id. at 611-12.
[¶22] Following our opinion, DCS sought rehearing. We granted DCS's petition to clarify that, on remand, father's request for custody remained an open question in the trial court. S.A. II, 27 N.E.3d at 292. In all other respects, we affirmed our original opinion. Id. at 293.
[¶23] Neither of our opinions in S.A. is to Mother's advantage here. Unlike the trial court's findings against the father in S.A., here the trial court's findings against Mother are supported by the record, as we have explained in part 1 of this opinion. Thus, here, the denial of Mother's request for custody was not clearly erroneous. Accordingly, Mother's assertion that she is a "fit" parent with whom the Children can be placed so as to make the coercive intervention of the court unnecessary is not consistent with our standard of review, and we affirm the trial court's adjudication of the Children as CHINS.
Conclusion
[¶24] For all of these reasons, we affirm the trial court's denial of Mother's motion to modify custody and its adjudication of the Children as CHINS.
[¶25] Affirmed.
Brown, J., and Kenworthy, J., concur.