K.B. and M.B. (Minor Children), And M.W.B. (Father), Appellant-Respondent, vs. THE INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner.
No. 47A04-1404-JC-189
COURT OF APPEALS OF INDIANA
January 16, 2015
24 N.E.3d 997
RILEY, Judge
APPEAL FROM THE LAWRENCE CIRCUIT COURT, The Honorable Andrea McCord, Judge, Cause No. 47C01-1211-JC-462 & 47C01-1211-JC-463
FOR PUBLICATION
ATTORNEY FOR
DANIEL DIXON
Bedford, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
ROBERT J. HENKE
Deputy Attorney General
CHRISTINE REDELMAN
Deputy Attorney General
Indianapolis, Indiana
Co-Appellee‘s Special Advocate:
DARLENE STEELE McSOLEY
Bedford, Indiana
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, M.W.B. (Father), appeals the trial court‘s Order adjudicating his minor children, M.B. and K.B. (collectively, Children), to be Children in Need of Services (CHINS).
We affirm.
ISSUES
Father raises two issues on appeal, which we restate as:
(1)Whether there was sufficient evidence to support the trial court‘s determination that the Children are CHINS; and
(2) Whether the trial court‘s intervention was necessary to coerce Father into providing the Children with necessary care and treatment.
FACTS AND PROCEDURAL HISTORY
Father and K.M. (Mother)1 are the biological parents of M.B., born on September 13, 2001, and K.B., born on April 10, 2005. Father and Mother were divorced and they shared physical and legal custody of the Children. Father and the Children lived with his girlfriend (Girlfriend), who was also the Children‘s custodian. In addition, Girlfriend‘s minor daughter, M.A.,2 born on February 5, 2003, lived in the house with Father and the Children. M.A. is Girlfriend‘s child from a previous marriage and Girlfriend was going through divorce proceedings.
On September 1, 2012, the Lawrence County Police Department received a call that Father and Girlfriend had a domestic fight in the presence of all three children. Officers Chris Roberts (Officer Roberts) and Officer B.J. Fulkerson (Officer Fulkerson) were sent to the residence to investigate. Girlfriend was the only person present in the home; Father had left, and M.B. and K.B. had been picked up by Mother‘s boyfriend. As the officers approached the residence, they drove past M.A.‘s grandfather‘s vehicle and saw that M.A. was seated in the back seat and was crying. When Officer Roberts walked up to the house, he noticed a broken window. The officers knocked several times before Girlfriend answered the door. As Girlfriend was narrating the night‘s events,
On the morning of September 3, 2012, the Indiana Department of Child Services (DCS) received a report of the domestic dispute between Father and Girlfriend. That same day, DCS family case manager Sylvia Nowakowski (FCM Nowakowski), accompanied by a law enforcement officer, visited Father‘s and Girlfriend‘s home. There was a lengthy delay before anyone answered the door; finally, Father and Girlfriend came out, stood on the front porch, and denied FCM Nowakowski access to their home. According to FCM Nowakowski, Father and Girlfriend seemed impaired. More particularly, they were “pacing back and forth, couldn‘t stand still, [and] appeared very paranoid.” (Tr. p. 45). They both had enlarged pupils, and their eyes were blood shot. When questioned regarding the domestic episode of September 1, Father recounted that he had gotten into a heated argument with Girlfriend, that Girlfriend had unintentionally broken a window, and because of the incident, they had arranged for the removal of all three children from the home. FCM Nowakowski requested Father and Girlfriend to take a drug screen, but both declined.
When FCM Nowakowski insisted that she needed to see the children, she was denied permission. After further pressing, Father eventually summoned M.A. to the front porch and started bombarding her with questions such as “[A]re you taken care of [?] [A]re you fed?“—which were followed by M.A.‘s short, affirmative answers. (Tr. p. 86). On seeing how frightened M.A. appeared to be and fearing for M.A.‘s safety, FCM Nowakowski decided not to pursue her questioning. In the end, FCM Nowakowski arranged for a family team meeting for the next day at 4:00 p.m. so as to address the domestic violence issue.
On September 4, 2012, prior to the 4:00 p.m. family team meeting, FCM Nowakowski, without approval from Father or Girlfriend, visited the three children at their schools for a private meeting. According to FCM Nowakowski, the fact that she was unable to interview the children the day before, presented exigent circumstances requiring a private conference with the children. FCM Nowakowski first questioned M.A. who expressed that she did not want to get anyone into trouble. M.A., however, admitted that there were bad things happening in her home. M.A. informed FCM Nowakowski that Girlfriend had once told her that she had used cocaine, and even though she had never seen Girlfriend use drugs, Girlfriend had voiced to her that she had recently used drugs. M.A. could not recall the exact date Girlfriend had made that statement. On questioning M.A. about the domestic incident occurring on September 1, M.A. stated that M.B. and K.B. were present during the domestic episode. M.A. stated that she was scared and that she called her paternal grandfather to pick her up from the residence. When FCM Nowakowski asked M.A. if she felt safe in the home, M.A. repeated that she really did not want to get anyone into trouble. Next, FCM Nowakowski questioned M.B., who stated that he felt safe at home and did not think that Father or Girlfriend were using any drugs. On questioning K.B., K.B. voiced to FCM Nowakowski that she could not disclose the things that happened inside
On September 13, 2012, Father and Girlfriend reached an agreement with DCS to enter into an Informal Adjustment. The Informal Adjustment required Father and Girlfriend, among other things, to allow DCS visits and supervision, to maintain a stable home for all three children, to participate in home-based counseling, and to submit to random drug screens. After the trial court approved the Informal Adjustment on September 13, FCM Nowakowski transferred the case to FCM Miranda Lane (FCM Lane). Father‘s and Girlfriend‘s participation with the Informal Adjustment was sporadic. Father and Girlfriend failed to participate in home-based counseling, keep contact with DCS, take drug screens, or allow DCS to visit with the children. On November 9, 2012, the trial court authorized DCS to file a petition alleging each child to be a CHINS.
During the pendency of the CHINS proceedings, Girlfriend‘s divorce was finalized, whereby she lost physical and legal custody of M.A. Subsequently, on July 3, 2013, the CHINS petition filed on M.A.‘s behalf was dismissed. A bifurcated fact finding hearing with respect to M.B. and K.B. was held on October 22 and on November 19, 2013. On January 31, 2014, the trial court issued an Order finding that the Children were CHINS pursuant to
Father now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
DCS bears the burden of proving that a child is a CHINS by a preponderance of the evidence. In re M.W., 869 N.E.2d 1267, 1270 (Ind. Ct. App. 2007). In reviewing a CHINS determination, our court does not reweigh evidence or assess witness credibility. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). We consider only the evidence in favor of the trial court‘s judgment, along with any reasonable inferences derived therefrom. Id. Further, “a CHINS adjudication may not be based solely on conditions that no longer exist. The trial court should also consider the parents’ situation at the time the case is heard.” In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013).
When a trial court enters findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), we may not set aside the findings or judgment unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence supports the factual findings. Id. Second, we consider whether the findings support the judgment. Id. “Findings are clearly erroneous only when the record contains no
II. Sufficiency of the Evidence
The purpose of the CHINS adjudication is to “protect the children, not punish parents.” In re N.E., 919 N.E.2d at 106. When it is in the child‘s best interest, the State may exert its parens patriae power and intervene to safeguard the child‘s welfare. Id. However, trial courts must balance the child‘s needs against the due process rights of the parents. Id. In order to support a CHINS adjudication, the CHINS statute provides that DCS must establish that
(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.
Father first argues that DCS presented insufficient evidence in establishing that the Children‘s emotional or physical well-being was endangered under his care. Here, the trial court concluded:
7. Inasmuch as evidence presented by DCS established by preponderance that (1) [Children], both of whom are under eighteen years of age, witnessed domestic violence in the home of Father and [Girlfriend] which continued due to urgent pleas that it stop and (2) Father and [Girlfriend] were observed by a trained law enforcement personnel and trained DCS personnel to be under the influence at least [of] one unknown intoxicating substance on the night of the physical violence and again two days later, the court concludes that the [C]hildren‘s mental and physical conditions are seriously endangered as the result of Father‘s and [Girlfriend‘s] inability, refusal or neglect to supply them with necessary supervision.
8. Inasmuch as evidence presented by DCS established by a preponderance that (1) Father and [Girlfriend] continue to deny that there has been domestic violence in their home and continue to deny any substance abuse problems, (2) neither Father nor [Girlfriend] has received counseling treatment to address their domestic violence and substance abuse problems, and (3) Father and [Girlfriend] utterly flouted the court-approved informal adjustment in which they had agreed to participate, the court concludes that the children need care, treatment or rehabilitation that they are not receiving and which is unlikely to be provided or accepted without the coercive intervention of the court.
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(Appellant‘s App. p. 138).
Father contends that the trial court‘s conclusion that the Children‘s physical and emotional well-being was endangered as a
We note that a child‘s exposure to domestic violence can support a CHINS finding. In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). Moreover, the CHINS statute does not require the juvenile court and DCS to wait until a child is physically or emotionally harmed to intervene; rather, a child may be determined to be a CHINS if his or her physical or mental condition is endangered. In re R.P., 949 N.E.2d 395, 401 (Ind. Ct. App. 2011). In the present case, the Children were old enough to comprehend the violence. On the initial interview that FCM Nowakowski conducted at the children‘s school, M.A., reported that her half-siblings, M.B. and K.B., were present in the room while the parents were fighting, and that they were crying. Indicating that the violence was repetitive, M.A. also stated that was how the Children reacted when Father and Girlfriend fought.
When DCS first became involved, it was to ensure that the Children were not exposed to violence. Through DCS‘s intervention, Father and Girlfriend agreed to an Informal Adjustment, which required both to attend domestic violence counseling. Father and Girlfriend were referred to George Freeman of the Ireland Home Based Services (Counselor Freeman) for couples therapy and substance abuse counseling. Father initially complied but did not attend to all counseling sessions. Counselor Freeman testified that he met with Father three times in 2012 for counseling but there had been no meetings in 2013. The record reveals that there was a similar pattern with respect to Girlfriend. According to Counselor Freeman, there were still unmet needs at the time the services were terminated.
Father also contends that the domestic disturbance was an isolated case and that the record lacks evidence of a pattern of violence. He cites In re N.E., 919 N.E.2d at 106, which held that a child was properly adjudicated as CHINS based upon mother‘s failure to protect her children from ongoing domestic violence between herself and alleged father of the child‘s sibling. Accordingly, Father argues that absent the recurrence of violence, the trial court erred in determining the Children were CHINS based on a single episode.
However, during back to FCM Nowakowski‘s initial interview with the children, M.A. indicated that the domestic violence between Father and Girlfriend was repetitive. Specifically, M.A. reported the Children were present in the room during the violence, they were crying, and that‘s how they reacted when Father and Girlfriend fought. Even if no other evidence of violence exists, we reiterate that the CHINS
Father also argues that although DCS suspected that he and Girlfriend were using illegal drugs, no drug test was assigned; as such, the trial court‘s conclusion that they were using drugs is based on speculation and conjecture. We disagree. Pursuant to the Informal Adjustment, Father and Girlfriend agreed to submit to random drug screens with which they subsequently refused to comply. Moreover, absent drug tests, we cannot resolve that the trial court‘s conclusion that Father and Girlfriend did struggle with substance abuse is erroneous or unsupported by the evidence. The testimony of Officer Roberts, M.A., Girlfriend, and FCM Nowakowski independently supports the conclusion that Father and Girlfriend had a possible drug problem that needed to be addressed. Officer Roberts, who was dispatched to investigate the domestic disturbance testified that Girlfriend seemed nervous, could not stand still, jumped from subject to subject, and “her jaw muscles kept flexing.” (Tr. p. 97). According to Officer Roberts, Girlfriend‘s movements were similar to a person who had been using illegal drugs. M.A. also testified that Girlfriend had once told her that she had used cocaine. During the fact-finding hearing, Girlfriend indeed admitted that she had a past drug problem. In addition, FCM Nowakowski testified that on September 3, 2012, she observed Father and Girlfriend having some impairment. More particularly, FCM Nowakowski stated that they were pacing back and forth, couldn‘t stand still, appeared very paranoid, both had enlarged pupils, and their eyes were blood shot. In light of the foregoing, we cannot conclude that the trial court‘s conclusion that Father and Girlfriend did struggle with substance abuse is erroneous.
II. Coercive Authority of the Court
Lastly, Father challenges the necessity of the trial court‘s coercive intervention. In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014), our supreme court eloquently explained that the focus on CHINS proceedings is on the “best interests of the child and whether the child needs help that the parent will not be willing or able to provide—not whether the parent is somehow ‘guilty’ or ‘deserves’ a CHINS adjudication. But that help comes not by invitation, but compulsion—imposing the court‘s ‘coercive intervention’ into family life. The intrusion of a CHINS judgment, then, must be reserved for families who cannot meet those needs without coercion—not those who merely have difficulty doing so.” Id.
As mentioned earlier, DCS first became involved with the case due to the domestic violence issue, and also because they had a reasonable suspicion that Father and Girlfriend were using illegal drugs. In the CHINS petition, DCS stated that Father and Girlfriend failed to attend scheduled counseling, keep contact with DCS, submit to drug screens, and allow DCS to visit the
neither Father nor [Girlfriend] has received counseling treatment to address their domestic violence and substance abuse problems, and (3) Father and [Girlfriend] utterly flouted the court-approved [I]nformal [A]djustment in which they had agreed to participate, the court concludes that the [C]hildren need care, treatment or rehabilitation that they are not receiving and which is unlikely to be provided or accepted without the coercive intervention of the court.
(Appellant‘s App. p. 138). Father claims that “no family is obligated to participate” in an Informal Adjustment without consenting. (Appellant‘s Br. p. 18). He further states that if a court uses a “parent‘s failure” as evidence, “it will create a substantial disincentive for voluntary participation [of] such agreements.” (Appellant‘s Br. pp 18-19).
We note that a CHINS adjudication under
Father is also incorrect in stating that he and Girlfriend were not obligated to comply with the Informal Adjustment. We note that an informal adjustment is an agreement between DCS and a family where the family agrees to participate in services in an effort to prevent the children from being formally declared CHINS. See
In addition, Father argues that the court‘s intervention was unnecessary since the Children were performing well in
As for Father‘s claim that the Children had a place to sleep, the record is barren that the Children had a stable home. The record is rife with conflicting evidence as to where the family resided. Father testified that after losing his home in October 2012, and prior to the CHINS proceedings, the family moved in with his father. Father maintained that has always been his legal residence. However, Father testified that at times, the family resided in a friend‘s garage. Father further testified that sometimes the family would rent a room at Super 8 motel “on the weekends” so to allow the Children to “swim in the pool” and use the hot tub and internet facilities. (Tr. p. 242).
Contrasting Father‘s claim that they had a stable home, FCM Lane testified that she was concerned that the Children did not have a steady home since Father and Girlfriend were evasive about their address. Whenever FCM Lane would attempt to schedule a visit, Father and Girlfriend would cancel or tell her that the Children were unavailable. She testified that in her quest to verify the Children‘s home, she received reports from family members indicating that, from time to time, the family stayed at various hotels. When she called the hotels, one confirmed that they had never been there, and the other established that the family was once there but not anymore. FCM Lane also attempted to locate Mother, who has joint custody of the Children. FCM Lane testified that in the course of her investigation, she learned that Mother did not have a suitable home. During the CHINS proceedings, Mother was living at a shelter where she could not have the Children, and that maternal grandmother lived with the Children during Mother‘s custodial periods.
Likewise, the CASA testified that she was also uncertain as to where the family lived. She testified that out of the nine family visits she had scheduled, she was successful in meeting the family on only two occasions. The first visit was in March 2013, and the Children were staying with maternal grandmother. The last visit the CASA made was in September 2013, right before the fact-finding hearing, and the Children were residing in the home of their paternal grandfather.
We note that a CHINS finding should consider the family‘s condition not just when the case was filed, but also when it is heard. In re S.D., 2 N.E.3d at 1290. Assessing the evidence as a whole, there is ample indication that Father and Girlfriend, did little-to-nothing to cooperate with DCS throughout these proceedings. Father and Girlfriend failed to address their domestic violence and substance abuse problems through home-based counseling. The record is also replete of Father‘s and Girlfriend‘s missed appointments with DCS. FCM Lane testified that it had “been four months out of the past year” in which Father and Girlfriend had not complied with the monthly DCS visits.
CONCLUSION
In light of the foregoing, we conclude that the trial court‘s Order adjudicating Children as CHINS is not erroneous.
Affirmed.
MATHIAS, J. and CRONE, J. concur