K.S. v. Ind. Dep't of Child Servs. (In re Ar.B.)

199 N.E.3d 1232

In the MATTER OF AR.B., At.B., and As.B., Minor Children Alleged to be Children in Need of Services;

K.S. (Mother), Appellant-Respondent,

v.Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals Case No. 22A-JC-672

Court of Appeals of Indiana.

Filed November 29, 2022

Attorney for Appellant: Roberta L. Renbarger, Fort Wayne, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Robert J. Henke, Director, Child Services Appeals Unit, Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1] K.S. ("Mother") appeals the trial court's adjudication of her children, Ar.S., At.S., and As.S. (collectively "Children"), as children in need of services ("CHINS"). Mother argues that: (1) DCS presented insufficient evidence to support a CHINS finding; and (2) the CHINS case should be dismissed because the dispositional hearing was untimely. We conclude that the evidence is sufficient to support the CHINS finding and that Mother waived her challenge to the timeliness of the dispositional hearing. Accordingly, we affirm.

Issues

[2] Mother raises two issues on appeal, which we restate as:

I. Whether DCS presented sufficient evidence to support a CHINS adjudication.

II. Whether Mother waived her challenge to the timeliness of the dispositional hearing.

Facts

[3] The Children are the children of Mother and J.B. ("Father").¹ Ar.S. was born on April 6, 2015; At.S. was born on January 23, 2017; and As.S. was born on November 6, 2018.²

[4] Mother and Father began dating in February 2012, and the two married four years later. Father has a history of abusing Mother that dates back to a year after they began dating. In December 2019, Mother filed for a divorce, but the matter was dismissed when Mother and Father failed to appear for the scheduling conference. Thereafter, Mother "reconciled with [Father] off and on." Tr. Vol. II p. 28.

[5] On July 30, 2020, Mother contacted the police to report that Father "was drunk and was yelling at her" in the presence of the Children. Id. at 54. Allen County Sheriff's Department Deputy Tom Gannon responded to the incident. On his way to Mother's home, Deputy Gannon learned that approximately nineteen calls were made to the Sherriff's Department regarding Mother's address in the past year.³ Most of the calls involved domestic violence or fighting with neighbors.

[6] On August 17, 2020, Father committed domestic battery against Mother. On September 17, 2020, the trial court entered a no-contact order that prohibited Father from contacting Mother.

[7] On February 1, 2021, Father violated the no-contact order by entering Mother's home and battering Mother. Ar.S. reported that "he saw [Father] throw [Mother] on the ground[,] causing a bruise on her arm." Ex. 1, p. 14. On February 5, 2021, the State charged Father with domestic battery with a prior conviction, domestic battery with bodily injury to a pregnant woman, and invasion of privacy. FCM Debra McClintock investigated the incident and reported that, in addition to Ar.S., As.S. also "witnessed the incident," but that "[At.S.] was asleep at the time[.]"⁴ Tr. Vol. II p. 38. On April 6, 2021, DCS filed its petition alleging that the Children were CHINS.

[8] On April 8, 2021, Mother was arrested for a domestic battery against her father's girlfriend, C.M. Mother was also involved in a previous domestic incident involving C.M. in March 2021, in response to which police were contacted. The Children were present during both incidents. In addition, Mother was convicted of domestic battery against another woman in January 2019.

[9] After Mother's arrest in April 2021, DCS took custody of the Children. As.S. and At.S. were placed in foster care.⁵ While in foster care, At.S., age four at the time, "cornered" the foster parent's three-year old daughter and "punched her in the face[,]" which "caused a nose bleed." Id. at 16-17. At.S. "continued to show ... aggression towards" the foster parents’ three-year old daughter, and the foster parents "were not comfortable having [At.S. and As.S.] remain in the home after that incident." Id. at 18. The Children were then placed in relative care with their maternal great aunt. DCS recommended therapy for At.S. based on her striking the foster parent's daughter.

[10] On May 3, 2021, DCS filed an amended CHINS petition. DCS was concerned about "ongoing domestic violence issues ... and the harm to the children of witnessing the domestic violence issues." Tr. Vol. p. 91. DCS alleged that "[Mother] has a history and ongoing pattern of domestic violence as both the victim and the aggressor" and that "[Mother] is unable to protect the children from domestic violence." Ex. 1, p. 14.

[11] The trial court held fact-finding hearings on May 13, June 17, June 22, and July 1, 2021. During the fact-finding hearings, the foster father testified regarding the incident involving At.S. while she was in foster care. Deputy Gannon, FCM McClintock, and FCM Shannon Beecher all testified regarding the multiple police calls to Mother's address in response to fighting. FCM McClintock also testified regarding the potential consequences of witnessing domestic violence to the Children's development. Mother testified that, while the September 2020 no-contact order was in effect, Father returned to the home without her permission on two occasions, one of which was the February 1, 2021, domestic violence incident. Mother admitted that Father battered her on August 17, 2020, and February 1, 2021, and that Ar.S. witnessed the latter. Mother also admitted that she was arrested for domestic violence against C.M. in the presence of the Children and that police previously intervened in an incident between Mother and C.M.

[12] The trial court found the Children were CHINS and entered its written findings of fact and conclusions thereon on September 22, 2021. The trial court found:⁶

[The Children] are in need of a home environment that is free of domestic violence. [Mother] is not able to provide such an environment for the children as there has been a historical pattern of domestic violence occurring in the family home while the children have been present ... The mother continues to engage in an on-again, off-again, [sic] relationship with [Father]. The mother is not providing the children with a home free of domestic violence and/or a home with appropriate supervision .... The Court finds that the children's mental and physical condition are seriously endangered as the result of [Mother's] inability, refusal or neglect to supply them with necessary supervision.

The mother has been both the victim and the perpetrator of domestic violence since the initiation of these proceedings. She has a lengthy history of domestic violence with the children's father.... She also has a history of engaging in domestic violence with others. She has not received counseling or other services to identify what, if any, psychological issues she needs to address as a result of her being both a victim of domestic violence as well as a perpetrator and has not participated in therapy to address the trauma that she has experienced as [a] result of her victimization nor has she sought therapy or other services for ... [At.S.,] who, by her actions, has demonstrated that she is in need of therapy, yet is not participating in therapy. Given the fact that the children have repeatedly been exposed to acts of domestic violence and the mother has demonstrated the inability and/or unwillingness to ensure that they are provided with an environment that is free of domestic violence, 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.

Appellant's App. Vol. II pp. 53-54. The trial court also found that Ar.S. "has demonstrated a need for and is participating in therapy." Id. at 54.

[13] The trial court held a dispositional hearing on February 28, 2022. During the dispositional hearing, Mother did not object to the timing of the hearing and stated, through counsel, that she would "honor the dispositional agreements." Tr. Vol. II p. 189. The trial court also asked Mother if she was willing to participate in the recommended services, and Mother answered, "Yes[,] and I have been for ... a while." Id. at 194. The trial court issued its dispositional order in open court. Later that day, Mother filed a motion to dismiss the CHINS case in which she argued that the dispositional hearing was untimely. The trial court entered its written dispositional order on March 3, 2022, which was 159 days after the trial court adjudicated the Children as CHINS. The trial court did not hold a hearing on Mother's motion to dismiss. Mother now appeals.

Discussion and Decision

I. CHINS Adjudication—Sufficiency of the Evidence

[14] Mother argues that DCS presented insufficient evidence to support the CHINS adjudication. We disagree.

[15] 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...