The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 08 2019, 9:08 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Roberta Renbarger Curtis T. Hill, Jr.
Renbarger Law Firm Attorney General
Fort Wayne, Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of J.S. and M.S. January 8, 2019
(Minor Children), Court of Appeals Case No.
18A-JC-1791
Children in Need of Services,
Appeal from the Wells Superior
Court
and
The Honorable Kenton W.
P.W. (Mother) and J.W. Kiracofe, Judge
(Stepfather), Trial Court Cause Nos.
Appellants-Respondents, 90C01-1802-JC-2, -3
v.
Indiana Department of Child
Services,
Appellee-Petitioner
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Crone, Judge.
Case Summary
[1] P.W. (“Mother”) and J.W. (“Stepfather”) (collectively “Appellants”) appeal a
trial court order adjudicating Mother’s sons, J.S. and M.S. (collectively “the
Children”), as children in need of services (“CHINS”). They challenge the
sufficiency of the evidence to support the CHINS determination and raise a due
process argument concerning J.S.’s placement. We affirm.
Facts and Procedural History
[2] Following her divorce from P.S. (“Father”),1 Mother was awarded physical
custody of J.S. (born in 2004) and M.S. (born in 2008). In 2017, the Children
were living with Mother and Stepfather. Early that year, Appellants discovered
that J.S. had been viewing online pornography. In November 2017, M.S.
disclosed to Appellants that J.S. had been molesting him for a few months.
When Stepfather confronted J.S. with M.S.’s allegations, he became physical
with J.S., knocking him off his feet. Appellants immediately contacted Father,
who took J.S. to his house temporarily. Meanwhile, Appellants decided that
the Children would not be left together except under supervision and that they
would install alarms on their bedroom doors. In the middle of January, Father
1
Father is not participating in this appeal.
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called Weber and Associates to schedule initial intake appointments for
counseling for the Children. Tr. Vol. 2 at 23.
[3] On January 20, 2018, the Indiana Department of Child Services (“DCS”)
received a report that J.S. had molested M.S. over a three-month period and
that Mother had failed to seek services for the Children. That same day, DCS
Family Case Manager (“FCM”) Lindsey Feinberg visited Appellants’ home to
conduct an assessment. The Children were not home, and Appellants indicated
that they were both at Father’s house. When FCM Feinberg attempted to
discuss the allegations with Appellants, Stepfather told her that they would
neither speak to her nor allow her to interview the Children until they had
consulted their attorney. When she walked through the home, she saw no signs
of any alarms on the Children’s bedroom doors. Before she left, she completed
a safety plan specifying that Appellants must maintain contact with her, keep
the Children separated, and obtain counseling services for each child. The next
day, Stepfather contacted FCM Feinberg and told her about the pornographic
website that J.S. had been visiting. FCM Feinberg told Stepfather that per DCS
protocol, both boys needed to undergo a forensic interview.
[4] On January 22, 2018, FCM Feinberg contacted Mother, who told her that she
had set up counseling appointments for the Children at Weber and Associates.
Later that day, Stepfather told FCM Feinberg that the Children would be going
for counseling appointments at Phoenix and Associates (“Phoenix”). FCM
Feinberg reminded Stepfather about the Children’s need for forensic interviews,
and Stepfather told her that Appellants’ attorney (“Counsel”) would be
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handling the scheduling of forensic interviews. FCM Feinberg also attempted
to contact Father but was unsuccessful.
[5] Meanwhile, Counsel contacted FCM Feinberg and indicated preferences
concerning the times, location, and personnel involved in conducting the
forensic interviews. Counsel also requested that there be no police presence at
the interviews, which DCS declined, and demanded that the interviews be
conducted after regular school hours. FCM Feinberg arranged the interviews at
the requested location, scheduled them for January 24, 2018, and notified
Appellants and Counsel. Stepfather indicated that he did not want the forensic
interviews to take place until the Children were in counseling. Counsel said
that the interviews were scheduled on too short of notice and wanted them to
be conducted at her law office instead. DCS denied the request but rescheduled
the interviews for February 1, 2018, at Appellants’ previously requested
location. The Children did not attend the forensic interviews as scheduled, and
DCS filed a motion to compel conduct.
[6] On February 5, 2018, the trial court issued orders to comply with the DCS
investigation. DCS rescheduled the forensic interviews for February 7, 2018.
Mother brought M.S. for his interview as scheduled, but J.S. did not attend his
interview. During M.S.’s interview, he disclosed that J.S. had repeatedly forced
him to perform oral sex on him, to the point that M.S.’s mouth hurt. He also
reported that J.S. performed anal intercourse on him and showed him a
pornographic video. M.S. indicated that J.S. had threatened him and ordered
him not to disclose the molestation. The assaults took place over a two- to
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three-month period inside the Children’s house or inside a barn on their
property. M.S. also revealed that Stepfather had punched J.S. to the floor and
kicked him when he confronted J.S. about the sexual assault. He also revealed
that on previous occasions when Stepfather had spanked him, he left red marks
and it hurt to sit down.
[7] The day after M.S.’s forensic interview, DCS filed a petition to remove and
detain the Children. Meanwhile, FCM Feinberg made further attempts to
contact Father. The trial court granted DCS’s petition and signed an
emergency protective custody order for both boys, who were then taken from
their schools. J.S. was placed at Pierceton Woods in an inpatient treatment
program designed to prevent relapse by juvenile sex offenders. M.S. was placed
in foster care. That same day, Father returned FCM Feinberg’s call and
reported that he had not returned her previous phone calls because Appellants
had told him to have no contact with DCS. When asked, he told FCM
Feinberg that he had a brother and a sister who might serve as relative
placements.
[8] On February 9, 2018, DCS filed CHINS petitions as to J.S. and M.S. A few
days later, M.S. was removed from foster care and was placed with Father. He
participated in counseling at Phoenix, home-based services with Father, and
supervised visitation with Mother. In March 2018, DCS petitioned to change
J.S.’s placement to an inpatient program at Redwood due to a couple missed
medication incidents at Pierceton Woods. The court granted the petition
without a hearing, but after an investigation into the reasons for the missed
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medication doses, J.S. was allowed to remain at Pierceton Woods, where his
caseworkers report that he is doing well and is advancing more rapidly than
most other juveniles in the program.
[9] After a multi-day factfinding hearing, on June 27, 2018, the trial court issued an
order with findings of fact and conclusions thereon adjudicating J.S. and M.S.
as CHINS. Following a July 9, 2018 dispositional hearing, Mother was
ordered to complete a parenting assessment and psychological evaluation and
to attend all scheduled visitations with the Children. Stepfather failed to attend
the July hearing and had his dispositional hearing in August. The dispositional
decree as to Stepfather is not included in the record. Appellants now appeal.
Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The evidence is sufficient to support the CHINS
determination.
[10] Appellants challenge the sufficiency of the evidence to support the CHINS
determination. When reviewing the sufficiency of evidence, we give due regard
to the trial court’s ability to assess the credibility of witnesses. In re Des.B., 2
N.E.3d 828, 836 (Ind. Ct. App. 2014). We neither reweigh evidence nor judge
witness credibility; rather, we consider only the evidence and reasonable
inferences most favorable to the trial court’s decision. In re K.D., 962 N.E.2d
1249, 1253 (Ind. 2012). Where the trial court issues findings of fact and
conclusions thereon, we apply a two-tiered standard of review. In re R.P., 949
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N.E.2d 395, 400 (Ind. Ct. App. 2011). We consider first whether the evidence
supports the findings and then whether the findings support the judgment. Id.
We will set aside the trial court’s findings and conclusions only if they are
clearly erroneous and a review of the record leaves us firmly convinced that a
mistake has been made. Id. Appellate courts generally grant latitude and
deference to trial courts in family law matters. Matter of E.K., 83 N.E.3d 1256,
1260 (Ind. Ct. App. 2017), trans. denied (2018). This deference recognizes the
trial court’s “unique ability to see the witnesses, observe their demeanor, and
scrutinize their testimony, as opposed to this court’s only being able to review a
cold transcript of the record.” Id.
[11] In a CHINS proceeding, DCS bears the burden of proving by a preponderance
of the evidence that a child meets the statutory definition of a CHINS. In re
N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing
CHINS status, DCS must prove that the child is under age eighteen,
(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; 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.
Ind. Code § 31-34-1-1.
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[12] Although the acts or omissions of one or both parents can cause a condition
that creates the need for court intervention, the CHINS designation focuses on
the condition of the children rather than on an act or omission of the parent(s).
N.E., 919 N.E.2d at 105. In other words, despite 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.” Id. (citations omitted).
[13] Appellants do not dispute that the Children need care, treatment, or
rehabilitation. Rather, they maintain that the trial court erred in ultimately
determining that they are unable or have refused or neglected to supply the
Children with necessary supervision or treatment in the aftermath absent the
court’s coercive intervention. Because they do not specifically challenge any of
the court’s findings, we simply determine whether the unchallenged findings are
sufficient to support the judgment. T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d
104, 110 (Ind. Ct. App. 2012), trans. denied.
[14] In challenging the trial court’s determination that the Children were unlikely to
receive necessary treatment absent its coercive intervention, Appellants claim
that by the time DCS became involved, they had already taken every step
necessary to help the Children except for the actual counseling appointments.
They point to safety measures such as bedroom door alarms, as well as the
separation and supervision of the Children. However, FCM Feinberg testified
that she looked and did not notice any door alarms when she toured
Appellants’ home two months after M.S.’s disclosures. Tr. Vol. 2 at 89. As for
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the Children’s separation, FCM Feinberg testified that at the time of her visit,
Appellants told her that the boys were both at Father’s for a couple days. Id. at
90. Mother also cites her ill health as a reason for waiting nearly two months to
arrange counseling for the Children. The record shows that she indeed suffered
health issues and a brief hospitalization between the time of M.S.’s disclosures
and DCS’s involvement. Nevertheless, other than Father’s mid-January call to
arrange intake appointments at Weber and Associates, it appears that neither
Father nor Stepfather took any initiative to ensure that the Children received
treatment/counseling while Mother was indisposed.
[15] The uncontested findings also reflect that Appellants repeatedly failed to
cooperate with DCS. From FCM Feinberg’s first visit to their home to the time
of the factfinding hearing, Appellants were not forthcoming with DCS.
Stepfather essentially told FCM Feinberg that they would neither talk to her nor
allow the Children to do so until they secured legal counsel. Appellants also
instructed Father not to talk to FCM Feinberg and told him that their attorney
was handling matters. FCM Feinberg accommodated Appellants’ various
specifications as to the location, time, and certain personnel to be involved in
the Children’s forensic interviews. Yet, appointments were repeatedly
rescheduled due to Appellants’ failure to present the Children for those
interviews. See Appealed Order at 5 (finding 42 describing DCS’s
“extraordinary efforts” to speak to Children, Mother, and Counsel, and finding
that “Mother, along with her attorney, thwarted those efforts by not appearing
at the scheduled interviews on several occasions.”). DCS eventually sought and
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obtained an order to compel cooperation, and even then, Appellants’
compliance was only partial; they brought M.S., but not J.S., to be interviewed.
As of the date of the factfinding hearing, J.S. had yet to sit for a forensic
interview. This amounts to a demonstrated unwillingness by Appellants to
provide necessary treatment for the Children even with the court’s coercive
intervention.
[16] As for Mother’s assertion that she could not keep the Children apart and
present them both for their interviews, the record shows Father and Stepfather
both to be licensed drivers who could have pitched in to ensure that each boy
separately arrived at his interview as scheduled. Stepfather testified that he
ordinarily does not drive the Children but would be available to drive them in
emergency situations. Tr. Vol. 2 at 28-29. It is difficult to see how this would
not have qualified as one of those situations.
[17] With respect to J.S.’s treatment at Pierceton Woods, caseworker Bethany
Figolah testified that though J.S. has advanced rapidly through the levels of
treatment, he can advance no further without submitting to a polygraph, which
he is willing to do but for which Appellants have not granted permission. Id. at
40-41. In addressing the reasons for placing M.S. with Father after a brief stay
in foster care, the court relied on M.S.’s assertions that Stepfather had
physically abused J.S. on the night of the disclosures and had left red marks
after past spankings of M.S. Appellants claim that M.S.’s descriptions are
exaggerated and lack corroboration, but as the trial court accurately observed, it
was Appellants who facilitated the vacuum by repeatedly refusing to present
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J.S. for a forensic interview. Appellants’ argument concerning exaggerated
descriptions is an invitation to reweigh evidence and reassess witness
credibility, which we cannot do.
[18] Simply put, the uncontested findings support the trial court’s ultimate
determination that it is in the Children’s best interests to be removed from the
home environment, that remaining in the home would be contrary to their
welfare due to Appellants’ inability to provide care and/or supervision without
coercive intervention, and that the Children each need “protection that cannot
be provided in the home.” Appealed Order at 6-7. As such, we affirm the
CHINS determination.
Section 2 – Appellants were not denied due process concerning
J.S.’s placement.
[19] Appellants allege that they were denied due process based on DCS’s alleged
failure to consider placing J.S. with relatives and its decision to place him at a
facility that is fifty miles from their home. Because every CHINS proceeding
has the potential to interfere with parents’ rights to raise their children, due
process protections are vital at every stage of the proceedings. In re L.C., 23
N.E.3d 37, 40 (Ind. Ct. App. 2015), trans. denied. For this reason, we balance
“(1) the private interests affected by the proceeding; (2) the risk of error created
by the State’s chosen procedure; and (3) the countervailing governmental
interest supporting use of the challenged procedure.” In re G.P., 4 N.E.3d 1158,
1165-66 (Ind. 2014) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
Ultimately, due process requires “the opportunity to be heard at a meaningful
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time and in a meaningful manner.” K.D., 962 N.E.2d at 1257 (quoting
Mathews, 424 U.S. at 333).
[20] Indiana Code Section 31-34-4-2(a) requires that in CHINS proceedings, before
DCS places the child in an out-of-home placement, it must consider a relative
placement. Subsection (b) defines a relative placement as “a relative related by
blood, marriage, or adoption.” Here, the trial court removed the Children from
Appellants’ care immediately after M.S.’s forensic interview. M.S.’s disclosures
concerning sexual and physical abuse occurring in Appellants’ home
underscored the gravity of the circumstances. The court emphasized this in its
conclusions, stating “that reasonable efforts to prevent or eliminate removal of
the Children were not required due to the emergency nature of the situation[.]”
Appellants’ App. Vol. 2 at 23.
[21] Appellants’ argument appears twofold: that DCS should have placed J.S. in a
facility closer to their home, and that DCS failed to consider relative placement.
FCM Feinberg stated that her primary concern was getting J.S. the help he
needed. Tr. Vol. 2 at 100. With this goal in mind, J.S. was placed in a facility
with a program specifically geared for juvenile sex offenders, albeit fifty miles
from Appellants’ home. Though similar facilities may exist that are closer to
Appellants’ home, the statute makes no requirement as to inpatient treatment in
proximity to a particular parent. While we appreciate Appellants’ interest in
having J.S. placed in a convenient location, we believe that in these dire
circumstances, the State’s countervailing interest in protecting the Children
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supports J.S.’s placement in the specialized treatment program offered at
Pierceton Woods.
[22] With respect to DCS’s alleged failure to consider a relative placement,
Appellants admit in their brief that FCM Feinberg “talked to [Father] about
whether he had relatives in the area [and that Father] disclosed that he had a
sister and brother in the area.” Appellants’ Br. at 21 (citing Tr. Vol. 2 at 100).
Their complaint in this regard appears to center on FCM Feinberg’s testimony
that she discussed the matter only with Father and did not speak to them about
possible placement with either of their relatives. The statute does not require
DCS to conduct an exhaustive search for suitable relatives; rather, it simply
requires that DCS consider relative placement, which it did. Appellants were not
denied due process due to J.S.’s placement. Accordingly, we affirm.
[23] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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