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

171 N.E.3d 1056 (Table)

In the MATTER OF K.S., a Child in Need of Services,

R.S., Father and S.S., Mother,

Appellants-Respondents,

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

Court of Appeals Case No. 21A-JC-119

Court of Appeals of Indiana.

FILED June 9, 2021

Attorney for Appellant: Jennifer A. Joas, JOAS LAW, LLC, Madison, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Robert J. Henke, Katherine A. Cornelius, Deputy Attorneys General, Indianapolis, Indiana

MEMORANDUM DECISION

Kirsch, Judge.

[1] R.S. ("Father") appeals the juvenile court's order finding that K.S. ("Child") is a Child in Need of Services ("CHINS") and raises two issues for our review.

I. Whether the CHINS proceedings denied Father's right to due process; and

II. Whether there was sufficient evidence to support the requirements for services imposed on Father by the juvenile court's dispositional order.

[2] We affirm.

Facts and Procedural History

[3] Father and S.S. ("Mother") are the parents of K.S. ("Child"), who was born on December 14, 2009. Appellant's App. Vol. Two at 11. In September 2019, the Indiana Department of Child Services ("DCS") investigated an incident where Father allegedly physically abused Child, and DCS substantiated that instance of abuse or neglect. Id. at 12-13.² DCS did not file a CHINS petition based on this incident, and the matter was resolved as to Mother and Child through an informal adjustment. Id. at 20, 33, 42, 48. Father refused to participate in the informal adjustment. Tr. Vol. 2 at 21. The State criminally charged Father with neglect of a dependent resulting in bodily injury and domestic battery with bodily injury. Id. at 5, 18. The State also filed a petition for no contact order in that case on September 4, 2019, which was granted, and a copy of the order was served on Father on September 5, 2019. Id. at 5-7; Ex. Vol. at 15-17. The no contact order prevents Father from having any contact with Child, whether direct or indirect contact. Appellant's App. Vol. Two at 56; Tr. Vol. 2 at 6, 14.

[4] On September 9, 2020, DCS investigated a report that Mother was neglecting Child because Mother was consuming illegal drugs in the presence of Child. Tr. Vol. 2 at 4. Father was not living with Mother and Child at the time and was not at Mother's residence that day. Id. at 15-16. Family Case Manager Amanda Tedrow ("FCM Tedrow") and police officers arrived at Mother's home to investigate the report, and FCM Tedrow administered a drug screen to Mother, who tested positive for methamphetamine and amphetamine. Id. FCM Tedrow and the police officers concluded that Mother was under the influence of illegal substances based on her "pinpoint pupils," slurred speech, inability to follow the conversation, and nodding off to sleep during the investigation. Ex. Vol. at 7. Mother admitted to using marijuana but denied other drug use. Tr. Vol. 2 at 4. Child told FCM Tedrow that Mother and Mother's boyfriend smoked marijuana in Child's presence. Ex. Vol. at 8. Child was removed from Mother's home on September 10, 2020 and was placed in the care of a relative. Appellant's App. Vol. Two at 15, 23.

[5] Two days later, on September 11, 2020, DCS contemporaneously filed its "Preliminary Inquiry," which set forth facts to support DCS's claim that Child was a CHINS, and its Verified Petition Alleging Child to be a Child in Need of Services ("Verified CHINS Petition"). Id. at 11-14, 15-22. In the Preliminary Inquiry, DCS cited Mother's drug use, Mother testing positive for methamphetamine, and the observations of FCM Tedrow and police officers that Mother exhibited signs that she was under the influence of illegal substances. Id. at 15. The Preliminary Inquiry also provided details about Father's criminal charges and the no contact order. Id. at 16, 19, 20. Even so, the Preliminary Inquiry only recited the details of Mother's drug use as the basis to remove Child from Mother's home. Id. at 21. However, the contemporaneously filed Verified CHINS Petition mentioned both Mother's drug use and Father's criminal charges and the no contact order as facts supporting the request that the juvenile court determine that Child was a CHINS. Id. at 12.

[6] On September 11, 2020, the juvenile court held an initial/detention hearing, confirming Child's removal from Mother's home and placement in the home of a relative. Id. at 23-24. Also on September 11, 2020, the juvenile court issued an order authorizing the filing of the Verified CHINS Petition. Id. at 3. This order was served on Father. Id. On September 16, 2020, an attorney appeared on behalf of Father. Id. at 4. On September 23, 2020, the trial court issued a detention order based on the initial hearing, ordering that Child should continue to be removed from the home. Id. at 23-24. On October 27, 2020, the juvenile court held a second initial hearing because neither Mother nor Father appeared at the first initial hearing. Id. at 6, 25-26. At this hearing, Father denied the allegations in the Verified CHINS Petition. Id. at 25.

[7] On November 10, 2020, the juvenile court held a fact-finding hearing at which Mother admitted to the allegations that she had failed multiple drug screens and had taken illegal substances; she agreed to participate in services designed to address her substance abuse issues. Id. at 30; Tr. Vol. 2 at 4. At the same hearing, the juvenile court granted Father's request to continue the fact-finding hearing, as to the allegations against him, to November 17, 2020. Appellant's App. Vol. Two at 30. On November 23, 2020, the juvenile court issued an order regarding the November 10, 2020 fact-finding hearing. Id. In that order, it court found that Mother admitted the allegations in the Verified CHINS Petition regarding her drug used and failed drug screens and thus declared Child to be a CHINS. Id.

[8] On November 17, 2020, the juvenile court held a fact-finding hearing for Father. Id. at 8. At the hearing, Father's attorney acknowledged that Father had been charged with neglect of a dependent for allegedly causing bodily injury to Child and that there was a no contact order preventing him from contacting Child, even indirectly, and FCM Tedrow testified that Father had violated the no contact order by having indirect contact with Child. Tr. Vol. 2 at 5, 15. 5, 7, 11, 15, 24, 27-28. FCM Tedrow testified that Father should participate in family team meetings, individual therapy, and case management. Id. at 25.

[9] On December 3, 2020, the juvenile court issued findings of fact and conclusions of law, determining that Father was unable to meet his parental obligations for Child because of the no contact order, and on December 9, 2020, the juvenile court issued amended findings of fact and conclusions of law. Appellant's App. Vol. Two at 45-53, 54-62. The amended findings and conclusions provided, in part:

Findings of Fact

....

7. The instant case is a case of child neglect.

....

11. That the pending criminal action involving Father is 88C01-1909-F5-000726, Neglect of a Dependent Resulting in Bodily Injury and Domestic Battery with Bodily Injury of a person under the age of 14.

12. The pending criminal action against Father involves allegations of abuse and domestic violence wherein [Child] is a victim.

13. That the pending criminal action has not been completed ....

14. That the State of Indiana through its prosecuting attorney petitioned on September 4, 2019 and obtained a no contact order against Father preventing the Father from having contact with the Child ....

....

17. That as of the date of the Fact-Finding hearing of November 17th, the no contact order issued in the criminal case was still in effect and no party had petitioned this Court to modify the terms of the no contact order.

Conclusions of Law

....

9. The State of Indiana has prevented contact between the Father and [Child] by use of the no contact order sought by the State of Indiana. ... [T]herefore Father is unable to provide for [Child's] basic needs. The Court has considered Father's argument that the State has imposed the condition on Father that prevents Father from caring for [Child] and finds it unpersuasive. But for Father's actions, Father would not be prevented from having contact with [Child] through a Protective Order.

....

11. Due to the conditions that Mother has admitted to and due to the No Contact Order preventing the Father from caring for [Child], it is clear that at the time of the Fact Finding Hearing [Child] cannot safely be returned to the home of either parent.

....

15. [Child's] physical and/or mental condition is seriously impaired or seriously endangered due to the inability, failure, or neglect of both Mother and Father to provide [Child] with appropriate supervision and shelter.

16. Specifically, ... without the coercive intervention of the Court, there would be no safe place for [Child] to reside, for the reasons that Mother has admitted to and due to Father's inability to have any contact with [Child] due to the No Contact Order.

Id. at 54-56, 60-61. Thus, the juvenile court adjudicated "[Child] to be a [CHINS] under I.C. 31-34-1-1 with regard to [Father]."³ Id. at 61.

[10] On December 8, 2020, the juvenile court held a dispositional hearing. Tr. Vol. 2 at 48-71. At that hearing, Family Case Manager Jessica Lewis ("FCM Lewis") testified that a parenting assessment of Father was important to determine whether Father had appropriate expectations regarding his relationship with Child and to develop a more specific plan to target services. Id. at 51-52. The parenting assessment would also help Father to "narrow down any underlying issues [with] domestic violence issues." Id. at 52. FCM Lewis believed case work and therapy would "help [Father] understand what our expectations are for [Child] as she gets older" and would be relevant to Father being able to care for her. Id. at 51. FCM Lews testified Father and Child needed to work on their relationship because they had not been...