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W.H. v. Ind. Dep't of Child Servs. (In re E.H.)

Court of Appeals of Indiana
Mar 29, 2023
No. 22A-JC-1898 (Ind. App. Mar. 29, 2023)

Opinion

22A-JC-1898

03-29-2023

In the Matter of E.H., A Child in Need of Services, v. Indiana Department of Child Services, Appellee-Petitioner. W.H. (Father), Appellant-Respondent,

ATTORNEY FOR APPELLANT Anna O. Holden ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Monika P. Talbot Deputy Attorney General


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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case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 Daniel W. Kelly, Magistrate Trial Court Cause No. 84C01-2204-JC-363

ATTORNEY FOR APPELLANT Anna O. Holden

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Monika P. Talbot Deputy Attorney General

MEMORANDUM DECISION

Riley, Judge.

STATEMENT OF THE CASE

[¶1] Appellant-Respondent, W.H. (Father), appeals the trial court's Child in Need of Services (CHINS) Dispositional Order.

[¶2] We affirm.

ISSUE

[¶3] Father presents this court with one issue, which we restate as: Whether his due process rights were violated by the findings and conclusions entered by the trial court in support of its CHINS Dispositional Order.

FACTS AND PROCEDURAL HISTORY

[¶4] Father and K.B. (Mother) are the parents of E.H. (Child), born March 2, 2019. On April 5, 2022, the Indiana Department of Child Services (DCS) received a report that Father, who is a convicted felon, had pointed a gun at the feet of Child's fourteen-year-old sibling, B.H., and had told B.H. to "start dancing." (Transcript p. 42). B.H. was forensically interviewed and made statements consistent with this report. The report prompted further investigation into Father's possession of firearms, which led to law enforcement executing a search warrant on Father's home on April 13, 2022. DCS' assessment family case manager Hali Meissel (FCM Meissel) investigated these reports and was present while the search warrant was executed on Father's home. Although ather denied knowing about the presence of any firearms, FCM Meissel observed multiple firearms plainly visible in the home, one of which matched the description of the firearm used in the B.H. incident. On April 13, 2022, DCS removed Child from Parents' care, as they were both arrested, Mother for violating a no-contact order and Father for being a domestic batterer in possession of firearms, one of which was alleged to have been stolen, and for marijuana possession. Child was placed with a relative.

Mother does not participate in this appeal.

[¶5] On April 18, 2022, DCS filed its petition alleging that Child is a CHINS. On April 20, 2022, CASA was appointed for Child. On May 2, 2022, the trial court found that Child was no longer in need of detention outside of the home and released Child to Mother. Mother was ordered to obey the no-contact order between herself and Father, and Father's access to Child was restricted to supervised visitation.

[¶6] On June 14, 2022, the trial court held a fact-finding hearing on DCS' CHINS petition. Father was called as a witness and was asked about the allegations contained in the CHINS petition, and he asserted his Fifth Amendment right not to testify. DCS moved the trial court to make the permitted negative inference from Father's assertion of his Fifth Amendment right, and the trial court granted that motion. Permanency FCM Sierra Martin (FCM Martin) testified that Father had the no-contact order against Mother rescinded as of April 20, 2022. Father had not attended any family team meetings, despite FCM Martin's offer to accommodate requests to schedule meetings with Father's attorney present. Mother had reported ongoing domestic violence between herself and Father to FCM Martin, who found Mother's report to be credible. The trial court adjudicated Child to be a CHINS based on DCS' evidence and Mother's admissions to ongoing domestic violence. The trial court ordered DCS to prepare its predispositional report. The trial court subsequently entered its written order with twenty-two findings of fact adjudicating Child a CHINS based on the evidence presented at the June 14, 2022, fact-finding hearing.

[¶7] On June 23, 2022, DCS filed its predispositional report, which included a detailed history of the reasons for DCS' involvement, a statement of Child's needs, a listing of what professionals had been consulted pertaining to Child's needs, DCS' recommendations for Child's care, treatment, rehabilitation, and placement, and its recommendations pertaining to Father's and Mother's participation in Child's care plan. The predispositional report also recited what reasonable efforts DCS had made to avoid the CHINS proceedings, which included offering home-based services, a SUD assessment, random drug screens, a clinical interview and assessment, and supervised visitation.

[¶8] On July 5, 2022, the trial court held the dispositional hearing. DCS' predispositional report was admitted into evidence without modification or objection. FCM Martin testified at the hearing that Father had not participated in any predispositional services and had been closed out from some of those services for non-participation. Father had been non-compliant with his supervised visitation with Child and had refused to drug screen. At the conclusion of the hearing, the trial court stated on the record that it was "approving and adopting the recommendations" of DCS. (Tr. p. 88).

[¶9] On July 18, 2022, the trial court entered its Dispositional Order in which it ordered that Child remain in her placement with Mother. Among other things, Father was ordered to engage in Fatherhood Engagement, random drug screens, mental health and substance abuse assessments, and supervised visitation. In support of its Dispositional Order, the trial court entered the following relevant findings of fact and conclusions thereon:

[C]hild having been found to be [a CHINS,] the [c]ourt, after reviewing the Predispositional Report(s) and hearing statements and evidence presented to the [c]ourt regarding the disposition of this cause, finds:
The needs of [C]hild for care, treatment, or rehabilitation are: adequate medical, dental, mental health, and educational services.
Participation by the parent, guardian, or custodian in the plan for [C]hild is necessary to: ensure the safety and wellbeing of [] Child.
Based on the information presented in the Predispositional Report(s) and provided at the hearing, the [c]ourt makes the following dispositional orders:
[C]hild shall remain in her current home or placement, with supervision by DCS.
* * *
Jurisdiction has been obtained upon [Mother and Father]. The [c]ourt, after hearing evidence, finds that [Mother and Father] shall participate in a treatment program or pay for services, consistent with the recommendation of DCS as follows:
[MOTHER AND FATHER'S DISPOSITIONAL ORDERS]
The [c]ourt finds that it is in the best interests of [C]hild to be removed from the home environment and remaining in the home would be contrary to the welfare of [C]hild because: of the allegations admitted, of an inability, refusal or neglect to provide shelter, care, and/or supervision at the present time, [C]hild needs protection that cannot be provided in the home, and [C]hild has special needs that require services for care and treatment that cannot be provided in the home.
The [c]ourt finds that reasonable efforts were made by DCS to prevent or eliminate the need for removal of [C]hild. The statements of reasonable efforts as set forth in the pleadings, reports, and documents of DCS and/or all other service providers filed herein are incorporated by reference.
(Appellant's App. Vol. II, pp. 18, 23) (emphasis added).

[¶10] Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[¶11] Father contends that his fundamental right to procedural due process was violated because the trial court did not enter adequate findings of fact and conclusions thereon to support its Dispositional Order. Parents' interest in the care, custody, and control of their children is among "the oldest of the fundamental liberty interests recognized[,]" and it is a liberty interest protected by the Fourteenth Amendment to the United States Constitution. Troxel v. Granville, 530 U.S. 57, 65 (2000). In addition, we have recognized the general proposition that "if the State imparts a due process right, then it must give that right." A.P. v. Porter Cnty. Office of Family &Children, 734 N.E.2d 1107, 1112 (Ind.Ct.App. 2000), trans. denied.

[¶12] Indiana Code section 31-34-19-10(a) of the CHINS statute provides that the trial court hearing a CHINS matter "shall accompany" its CHINS dispositional decree with written findings of fact and conclusions thereon concerning:

(1) The needs of the child for care, treatment, rehabilitation, or placement.
(2) The need for participation by the parent, guardian, or custodian in the plan of care for the child.
(3) Efforts made, if the child is a child in need of services, to:
(A) prevent the child's removal from; or
(B) reunite the child with[] the child's parent, guardian, or custodian in accordance with federal law.
(4) Family services that were offered and provided to:
(A) a child in need of services; or
(B) the child's parent, guardian, or custodian[] in accordance with federal law.
(5) The court's reasons for the disposition.
(6) Whether the child is a dual status child under IC [§] 31-41.
The CHINS statute expressly permits a trial court to "incorporate a finding or conclusion from a predispositional report as a written finding or conclusion upon the record in the court's dispositional decree." I.C. § 31-34-19-10(b).

[¶13] Father contends that the trial court's Dispositional Order is "vague" and that it "fails to adequately state the reasons for for [sic] the CHINS determination." (Appellant's Br. pp. 12, 13). Father likens his case to In re J.Q., 836 N.E.2d 961 (Ind.Ct.App. 2005), in which a mother challenged both the evidence admitted at the CHINS adjudication hearing and the evidence supporting the trial court's CHINS determination. Id. at 963. After determining that certain evidence had been admitted in error, we examined the findings of fact entered by the trial court in support of its CHINS adjudication and disposition which merely amounted to the following:

The [c]ourt finds that reasonable efforts have been offered and available to prevent or eliminate the need for removal from the home . . . the [c]ourt also finds that the services offered and available have either not been effective or been completed that would allow the return home of the child without [c]ourt intervention.
The [c]ourt finds that it is contrary to the health and welfare of the child to be returned home and that reasonable efforts have been made to finalize a permanency plan for the child.
Id. at 966. Acknowledging the interlocking CHINS and termination of parental rights statutory schemes, the fact that procedural due process irregularities in CHINS proceedings may lead to termination, and the important interests at stake, the J.Q. court concluded that the trial court's limited findings of fact entered in support of its CHINS adjudication and disposition made it difficult to determine whether a mistake had been made in adjudicating the child a CHINS. Id. at 966-67. The J.Q. court cited the requirement of Indiana Code section 31-34-19-10(5) and concluded that, in light of the trial court's failure to provide adequate reasoning for its disposition, reversal and remand was required so that the trial court could more fully comply with the mandate to enter findings in support of its CHINS disposition. Id.

[¶14] We find J.Q. to be distinguishable from the instant case. We first note that it is unclear from the J.Q. opinion itself whether the trial court entered separate orders on the CHINS adjudication and the CHINS disposition. Here, the trial court clearly entered separate orders on those matters. Unlike J.Q., Father does not challenge the sufficiency of the evidence or the findings of fact entered supporting the trial court's CHINS adjudication order; rather, he challenges the adequacy of the findings entered in support of the Dispositional Order. In addition, the actual findings examined by the J.Q. court are different than those before us, both in substance and in quantity.

[¶15] We find the case of in re R.P., 949 N.E.2d 395 (Ind.Ct.App. 2011), to be more helpful in addressing Father's claim. In R.P., Mother claimed that the trial court's inadequate findings and conclusions supporting its CHINS dispositional order violated her due process rights. Id. at 402. Mother argued that the trial court had simply entered boilerplate language which did not provide a basis for meaningful appellate review. Id. The R.P. court held that "the issue of whether a procedural violation amounts to a constitutional deprivation of due process is dependent on the factual circumstances of each given case." Id. at 403. We found that the trial court's findings and conclusions, although sparse, had been tailored to the mother's specific case and that the trial court had addressed the elements required by section 31-34-19-10(a). Id. We observed that the threat to the mother's due process rights was low, given that she did not allege any other procedural violations and the trial court's reasoning was apparent from the record. Id. We also observed that the court had previously held that

there is a greater risk of a constitutional violation when a child is placed outside of the home as a result of a CHINS hearing because such a placement logically indicates an increase in the possibility that there will be a subsequent termination of parental rights. By extension, the risk to [m]other's parental rights towards R.P. and L.P., who have been placed with [f]ather, is lower.
Id. (internal citation omitted). Given the language used by the trial court and the low risk of a constitutional violation, we found the trial court's findings and conclusions entered in support of its CHINS dispositional order to be adequate. Id.

[¶16] In this case, Father does not contend that the trial court failed to enter the findings and conclusions required by section 31-34-19-10(a)-he only asserts that they are "vague" without explaining how. (Appellant's Br. p. 12). Indeed, the trial court entered findings and conclusions pertinent to all of the separate factors listed in section 31-34-19-10(a), apart from whether the three-year-old Child was a dual status child. Father does not claim that this omission alone violated his due process rights. The trial court's language does not track the statute verbatim, and Father does not argue that the trial court has simply used a boilerplate form. Although the trial court's findings appear to include unnecessary language about the removal of Child from the home given that Child was placed with Mother, Father does not base any of his appellate claims on that unnecessary language. As it was permitted to do under section 31-34-19-10(b), in its Order, the trial court expressly incorporated the predispositional report's provisions pertaining to DCS' reasonable efforts to prevent Child's removal made prior to the CHINS disposition. The trial court's reasoning for ordering the disposition is clear from its findings and from the record: that its Order is in Child's best interests, given its inference that Father committed the acts alleged in the CHINS petition, Mother's admission that domestic violence was ongoing, and their inability to meet Child's needs. In addition, as in R.P., we conclude that the risk to Father's due process rights is low here, as this is the only procedural irregularity he alleges, and in the Dispositional Order, Child was placed with Mother. See R.P., 949 N.E.2d at 403. Given these circumstances, we find the trial court's findings and conclusions to be constitutionally adequate.

There is evidence in the record that, shortly after the entry of the Dispositional Order, the trial court modified the placement of Child with Mother to a placement with another relative. Father does not base any of his appellate claims on this subsequent modification.

CONCLUSION

[¶17] Based on the foregoing, we conclude that Father's due process rights were not violated by the trial court's findings and conclusions entered in support of its Dispositional Order.

[¶18] Affirmed.

[¶19] Altice, C. J. and Pyle, J. concur


Summaries of

W.H. v. Ind. Dep't of Child Servs. (In re E.H.)

Court of Appeals of Indiana
Mar 29, 2023
No. 22A-JC-1898 (Ind. App. Mar. 29, 2023)
Case details for

W.H. v. Ind. Dep't of Child Servs. (In re E.H.)

Case Details

Full title:In the Matter of E.H., A Child in Need of Services, v. Indiana Department…

Court:Court of Appeals of Indiana

Date published: Mar 29, 2023

Citations

No. 22A-JC-1898 (Ind. App. Mar. 29, 2023)