Opinion
24A-JC-1172
11-19-2024
In the Matter of T.H., Minor Child Alleged to be a Child in Need of Services; v. Indiana Department of Child Services, Appellee-Petitioner R.P. (Father), Appellant-Respondent
ATTORNEY FOR APPELLANT C. MATTHEW ZENTZ INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Shelby Superior Court The Honorable R. Kent Apsley, Judge Trial Court Cause No. 73D01-2402-JC-10
ATTORNEY FOR APPELLANT C. MATTHEW ZENTZ INDIANAPOLIS, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA MARJORIE LAWYER-SMITH DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Tavitas, Judge
Case Summary
[¶1] The Department of Child Services ("DCS") filed a petition alleging that T.H. ("the Child") was a child in need of services ("CHINS") based on the Child's inconsistent attendance at school. The Child was living with A.H. ("Mother"), who had custody of the Child. R.P. ("Father") sought to obtain custody of the Child in lieu of a CHINS adjudication. The trial court, however, declined to modify custody in Father's favor and adjudicated the Child as a CHINS. Mother subsequently violated the CHINS dispositional order, and the trial court then placed the Child with Father. The trial court later modified custody in Father's favor and closed the CHINS case.
[¶2] Father appeals and argues that the trial court: (1) erred by denying his initial requests for modification of custody; and (2) clearly erred by adjudicating the Child as a CHINS. We conclude that Father's first argument is moot and that the trial court did not clearly err by adjudicating the Child as a CHINS. Accordingly, we affirm.
Issues
[¶3] Father raises two issues on appeal, and the State raises another. We restate the issues in this case as:
I. Whether Father's argument that the trial court erred by denying Father's initial attempts to modify custody is moot.
II. Whether the trial court clearly erred by adjudicating the Child as a CHINS.
Facts
[¶4] Father and Mother, who were not married, have one child, T.H. ("the Child"), who was born in March 2017. In 2024, Mother had physical custody of the Child. Mother and the Child lived in Shelbyville, and the Child was attending Loper Elementary School. Father lived in Seattle, Washington.
[¶5] On February 28, 2024, DCS filed a petition alleging that the Child was a CHINS. The CHINS petition alleged that, while living with Mother, the Child had missed twenty-eight days of school and was tardy for twenty-six days of school; Mother did not have the Child ready for the bus; and Mother did not accept assistance from DCS. The petition further alleged that CHINS cases had previously been opened for two of Mother's older children due to those children missing school, and that those CHINS cases were ultimately closed after the Children were placed under the guardianship of their maternal grandmother.
[¶6] A fact-finding hearing was set for April 22, 2024. The day before the fact finding hearing, Father filed a motion in the trial court for temporary custody of the Child. The trial court held the CHINS fact-finding hearing on April 22, 2024. The trial court took judicial notice of: (1) Mother's pending charges for neglect of a dependent, a Level 6 felony, for depriving the Child of education; (2) the CHINS cases regarding Mother's older children for truancy; and (3) Mother's plea of guilty to a compulsory school attendance violation, a Class B misdemeanor, for failing to assure the older children's attendance at school.
[¶7] Loper Elementary School Assistant Principal Jessica O'Connor testified regarding the Child's inconsistent attendance. As of the date of the fact-finding hearing, the Child had nineteen doctor's notes, ten excused absences, nineteen unexcused full-day absences, seven unexcused half-day absences, thirty-nine unexcused tardies, and one early departure. Child had similar issues with attendance the previous year. Mother was "very difficult to get a hold of," and although the school held a meeting regarding the Child's attendance, Mother failed to attend. Tr. Vol. II p. 16.
As of February 29, 2024, the day after the CHINS petition was filed, the Child had thirteen doctor's notes, ten full-day excused absences, twenty unexcused full-day absences, five unexcused half-day absences, twentyeight unexcused tardies, and one early departure.
[¶8] O'Connor opined that the Child's absences "seriously endanger" the Child's "education . . . and her future." Id. at 20. The Child often missed reading class in the morning and was behind on her reading skills. The Child received an F in reading, an F in language arts, and a C in math.
[¶9] The school nurse, Michelle Herbert, also testified. She reported that Mother claimed the Child suffered from headaches and that the Child's doctor sent the school a "certificate of incapacity" at Mother's request, which would allow the Child to attend school "irregularly." Id. at 28. The doctor had ordered testing and referred the Child to a specialist; however, "the test had no[t] been completed and the follow up appointments had not been made" by Mother. Id. at 28.
[¶10] Nurse Herbert was also concerned that the Child was getting doctor's notes from multiple providers, including walk-in healthcare providers. Although the Child would receive a doctor's note, the Child was possibly not seeing a healthcare provider "until the evening time." Id. at 27. Nurse Herbert testified that the Child was either "actually sick and she's not getting medical treatment" or the Child was "only being taken to immediate care in the evenings so she can get a doctor's note for school." Id. at 32.
[¶11] The trial court then heard Father's testimony regarding his motion for a temporary custody order. Father testified that he lives in Seattle, Washington, where he has a bedroom for the Child, and the Child could attend schools in the area. Father had filed for a change of custody in the paternity court on April 17, 2024, before the fact-finding hearing in the CHINS case, but the paternity court declined to modify custody. The paternity court had set a review hearing for June 28, 2024.
[¶12] The trial court declined to rule on Father's motion for change of custody because Father filed the motion the day before the fact-finding hearing, which was a Sunday, and the parties had not had time to prepare. The trial court adjudicated the Child as a CHINS and issued the following findings:
3. The Court takes Judicial Knowledge [sic] of CHINS cases involving Mother's two other children ....
4. [M]other's older children . . . were adjudicated CHINS due to Mother failing to require the children to attend school. Those cases ended with guardianship granted to the children's grandparents when Mother failed to require the children to attend school after being provided DCS services for a year.
5. The Court takes Judicial Knowledge [sic] of [a criminal case against Mother]. Mother plead guilty to the crime of Compulsory School Attendance Violation and was sentenced on June 28, 2022.
6. The Court takes Judicial Knowledge [sic] of [a criminal case against Mother]. Mother is charged with Felony Neglect of [the Child] for failure to have [the Child] attend school and the charge is now pending.
7. During this current school year [the Child] is enrolled at Loper Elementary School. Transportation by bus is provided by the school. However, Mother chooses to not use the bus transportation provided and instead drives the child to school herself.
8. The school provides a drop off location for parents who choose to transport their children to school. When Mother transports [the Child] to school she does not drop [the Child] off in the location provided by the school. Instead, Mother [] drops [the Child] off behind the school buses. A dangerous location for a child of any age, but more so for [the Child] a 7-year-old.
9. Mother [] is neglecting [the Child's] education by failing to require [the Child to] attend school on a regular basis. During this school year [the Child] has missed more than 30 days of school and when Mother does take her to school [the Child] has been tardy approximately 40 days.
10. The Court notes that Mother has provided a medical excuse for approximately 10 of those days. However, instead of taking
[the Child] to her usual medical provider, Mother takes [the Child] to numerous other walk-in or urgent care providers. [The Child's] usual medical provider does provide for daily walk-in appointments.
11. The school attempted to work with Mother in order to address the problem of [the Child] not attending school, however Mother failed to voluntarily work with the school.
12. Failing to attend school has resulted in [the Child] making D's and F's in her classes.
13. Mother [] failing to provide an education for [the Child] is educational neglect and seriously endangers the child's mental condition.
14. Mother [] decided not to testify however, the court has had the opportunity to observe Mother's behavior in court on numerous occasions. Mother's courtroom demeanor is of a person indifferent to the allegations and the need to provide her child an education. Mother is routinely late to court. Mother [] was a half hour late for the fact-finding.
15. This child will continue to be neglected and fail to receive the free and appropriate public education provided by the State of Indiana without the coercive intervention of this Court.Appellant's App. Vol. II pp. 25-26.
[¶13] The dispositional hearing was held on May 14, 2024. Family Case Manager ("FCM") Slaven testified that, since the fact-finding hearing, the Child's school attendance had not improved. Of the sixteen school days since the fact-finding hearing, the Child had missed three days and was tardy for six days.
FCM Slaven's first name is not included in the trial transcript.
[¶14] Mother testified that she began keeping a log of the Child's attendance since the fact-finding hearing. The Child had a doctor's note for the three missed days, but Mother did not write down the reason for the Child's absences. According to Mother, the Child does not like school or her teachers and gets "angry and upset" when she has to go to school. Mother also claimed she had panic attacks on two mornings, which caused the Child to be late for school. The Child's aunt testified that the Child was "hell on wheels" and "will throw fits and not let [Mother] get her dressed at times." Id. at 131.
[¶15] DCS requested that the Child be placed with Father. Father testified that he moved to Seattle in 2021 and had seen the Child twice since then. Father last saw the Child in March 2023. The Court Appointed Special Advocate ("CASA") had concerns about placing the Child with Father without a "transition period." Id. at 143-44.
[¶16] The trial court again declined to place the Child with Father because the Child had not been "removed" from Mother, the "custodial parent." Id. at 151. As for the dispositional order, the trial court ordered Mother to engage in services and require the Child to attend school. The trial court indicated that it would reconsider placing the Child with Father if Mother did not follow the dispositional order.
[¶17] At a review hearing on July 29, 2024, the trial court determined that Mother had not engaged with services and that Mother "has proven to the Court that she cannot follow any schedule such as getting the child to school on time." Appellee's App. Vol. II p. 3. In the meantime, CASA staff had been able to visit Father's home in Seattle and determined that the home was appropriate for the child. The trial court, accordingly, ordered that the Child "is now placed with Father ...." Id.
[¶18] The trial court held a permanency hearing on September 23, 2024. The trial court ordered that, because Mother failed to engage in services and assure the Child's attendance, Father was to "have legal and physical custody of" the Child. Id. at 8. The trial court then closed the CHINS case. Father now appeals.
Discussion and Decision
I. Father's argument that the trial court erred by initially denying his motion for custody is moot.
[¶19] We first address Father's argument that the trial court erred by not modifying custody in Father's favor during the fact-finding and dispositional hearings. DCS counters that the issue is moot because the Child is now placed with Father. We agree with DCS that the issue is moot.
[¶20] Indiana Code Section 31-30-1-13 provides, in relevant part:
(b) Subject to subsection (d), a court having jurisdiction over a child who is the subject of a child in need of services proceeding
or juvenile delinquency proceeding has concurrent jurisdiction with a court having jurisdiction under IC 31-14 [paternity proceedings] for the purpose of establishing or modifying paternity, custody, parenting time, or child support of the child.
(d) If, under this section, a juvenile court:
(1) establishes or modifies paternity, custody, child support, or parenting time of a child; and
(2) terminates a child in need of services proceeding or a juvenile delinquency proceeding regarding the child;
the order establishing or modifying paternity, custody, child support, or parenting time survives the termination of the child in need of services proceeding or the juvenile delinquency proceeding until the court having concurrent original jurisdiction under subsection (a) assumes or reassumes primary jurisdiction of the case to address all other issues.
Indiana Code Section 31-14-13-6 requires the party seeking to modify an existing custody order to prove that: (1) modification is in the best interests of the child; and (2) there has been a substantial change in one or more of the factors set forth in Indiana Code Sections 31-14-13-2 or 31-14-13-2.5. The factors set forth in Indiana Code Section 31-14-13-2 are:
(1) The age and sex of the child.
(2) The wishes of the child's 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 parents;
(B) the child's siblings; and
(C) any other person who may significantly affect the child's best interest.
(5) The child's adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.Ind. Code § 31-14-13-2. Father did not request that the trial court issue written findings regarding modification of custody under these statutes, and in the absence thereof, the trial court was not required to issue such findings. In re Paternity of A.R.S., 198 N.E.3d 423, 231 (Ind.Ct.App. 2022).
[¶21] The trial court, thus, had concurrent jurisdiction with the paternity court to modify the custody order during the CHINS proceedings. The day before the CHINS fact-finding hearing, Father filed a motion for a "temporary custody order" requesting that the trial court "place[]" the Child with Father. Appellant's App. Vol. II p. 22. Although the trial court initially declined to place the Child with Father, at the July 29, 2024 review hearing, the trial court ordered the Child placed with Father, and at the September 23, 2024 permanency hearing, the trial court ordered that Father "have legal and physical custody" of the Child. Appellee's App. p. 8.
[¶22] "A case is moot when the controversy at issue has been ended, settled, or otherwise disposed of so that the court can give the parties no effective relief." E.F. v. St. Vincent Hosp. and Health Ctr., Inc., 188 N.E.3d 464, 466 (Ind.Ct.App. 2022). Father now has custody of the Child, and there is no effective relief this Court can provide. Father's argument regarding the trial court's decision not to award him custody at earlier points during the proceedings is moot.
II. The trial court did not err by adjudicating the Child as a CHINS.
[¶23] We next address Father's argument that the trial court erred by adjudicating the Child as a CHINS. CHINS proceedings are civil actions; thus, "the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code." In re N.E., 919 N.E.2d 102, 105 (Ind. 2010); see Ind. Code § 31-34-12-3. On review, we neither reweigh the evidence nor judge the credibility of the witnesses. In re D.J., 68 N.E.3d 574, 577-78 (Ind. 2017). Here, the trial court entered, sua sponte, findings of fact and conclusions thereon in granting the CHINS petition. "As to the issues covered by the findings, we apply the 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 the remaining issues under the general judgment standard, which provides that a judgment "'will be affirmed if it can be sustained on any legal theory supported by the evidence.'" Id. (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)). We will reverse a CHINS determination only if it is clearly erroneous. D.J., 68 N.E.3d at 578.
After granting Father custody of the Child, the trial court closed the CHINS case. On appeal, DCS does not argue that Father's challenge to the CHINS adjudication is moot. See In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014) (holding that challenge to CHINS adjudication was not moot despite placement of child back with mother and closure of the CHINS case).
[¶24] DCS must prove three elements for a juvenile court to adjudicate a child a CHINS: (1) the child is under the age of eighteen; (2) that one of eleven different statutory circumstances exist that would make the child a CHINS; and (3) the child needs care, treatment, or rehabilitation that he or she is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court. Id. at 580.
[¶25] "[T]he purpose of a CHINS adjudication is to protect children, not [to] punish parents." N.E., 919 N.E.2d at 106. A CHINS adjudication is not a determination of parental fault but rather is a determination that a child is in need of services and is unlikely to receive those services without intervention of the court. Id. at 105. "A CHINS adjudication focuses on the condition of the child .... [T]he acts or omissions of one parent can cause a condition that creates the need for court intervention." Id. (citations omitted). "A CHINS finding should consider the family's condition not just when the case was filed, but also when it is heard." S.D., 2 N.E.3d at 1290.
[¶26] Here, the trial court found that, based on the Child's absences from school, the Child was a CHINS under the general category of neglect as defined in 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.
[¶27] The CHINS adjudication is not clearly erroneous. Mother failed to assure the Child's consistent attendance at school. Because of the Child's poor attendance, the Child was behind on her reading skills, and her grades in several subjects were poor. Mother appears to have obtained doctor's notes as a pretext to excuse the Child's absences. Additionally, the school had difficulty contacting Mother, and Mother missed the school meeting regarding the Child's attendance. CHINS cases were previously opened due to Mother's failure to assure her older children's attendance, which resulted in those children being placed under the guardianship of their maternal grandmother.
[¶28] Father argues that the trial court erred by adjudicating the Child as a CHINS because the trial court should have placed the Child with Father earlier on during the proceedings without determining whether the Child was a CHINS. Father relies on In re S.A., 15 N.E.3d 602 (Ind.Ct.App. 2014), aff'd on reh'g, 27 N.E.3d 287 (Ind.Ct.App. 2015), trans. denied.
Father does not challenge the trial court's findings of fact. We, therefore, accept those findings as true. See In re A.C., 198 N.E.3d 1, 10 (Ind.Ct.App. 2022) (citing In re S.S., 120 N.E.3d 605, 608 n.2 (Ind.Ct.App. 2019)) (unchallenged CHINS findings are accepted as true), trans. denied.
[¶29] In S.A., DCS filed a CHINS petition alleging that the child was a CHINS based on the mother's drug use and violent relationship with her boyfriend. The father had been on active military duty and had only seen the child at birth and on one other occasion. The trial court adjudicated the child as a CHINS after an initial hearing, but the father then learned of the case and challenged the child's CHINS status. At that point, the child was living with its maternal grandmother, and the father was visiting the child daily. The trial court held a fact-finding hearing and declined to change the child's CHINS status. On appeal, we reversed the trial court's CHINS ruling on the grounds that DCS failed to present sufficient evidence that coercive intervention was necessary. Id. at 611-12.
[¶30] Father argues that S.A. stands for the proposition that "it is improper for the trial court to find that the child is a child in need of services where there is a fit and willing parent." Appellant's Br. p. 15. S.A. reached no such bright-line holding. Moreover, we are not persuaded that S.A. supports reversal of the trial court's CHINS adjudication here. In S.A., the child was placed with its maternal grandmother, and the father was visiting daily. No custody order between the parents appears to have been at issue. Here, however, Mother had physical custody of the Child and was opposing placement with Father. Father lived in Seattle and had only seen the Child twice since 2021, and the CASA was unable to visit Father's home to determine that it was appropriate for the Child until after the dispositional hearing.
[¶31] Although Father argues that the trial court should have placed the Child with Father before adjudicating the Child as a CHINS, prematurely placing the Child with Father, who lived on the other side of the country and had seen Child on only two occasions in the past several years, would have caused enormous stress and difficulties in the Child's schooling and life in general. The trial court was not required to place the Child with Father prior to the CHINS adjudication, and the trial court did not clearly err by adjudicating the Child as a CHINS.
Conclusion
[¶32] Father's argument that the trial court erred by not granting him custody of the Child earlier on during the proceedings is moot, and the trial court did not clearly err by adjudicating the Child as a CHINS. Accordingly, we affirm the judgment of the trial court.
[¶33] Affirmed.
May, J., and DeBoer, J., concur.