T.N. v. Ind. Dep't of Child Servs. (In re N.N.)

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In the matter of: N.N, and A.N (Minor Children, Children in Need of Services)

T.N. (Father), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner

No. 23A-JC-26

Court of Appeals of Indiana

May 22, 2023

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tipton Circuit Court The Honorable Thomas R. Lett Judge Trial Court Cause Nos. 80C01-2211-JC-137 80C01-2211-JC-138

ATTORNEY FOR APPELLANT C. Matthew Zentz Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana

Judges Bailey and Brown concur.

MEMORANDUM DECISION

Weissmann, Judge.

[¶1] T.N. (Father) challenges the trial court's determination that his two children are children in need of services (CHINS) based on domestic violence within the family. Father argues that the evidence on which the CHINS determination was based-that is, of Father's altercations with the children's mother, H.S. (Mother), in the presence of the children-either was inadequate or inadmissible. The remaining evidence, according to Father, could not establish the children were CHINS. We affirm the trial court's judgment, concluding that even if the court erred in admitting the challenged testimony, the record supports the judgment.

Facts

[¶2] Mother and Father are the parents of N.N. and A.N. (collectively, Children). N.N. was five and A.N. was four when this CHINS action began with a report to the Indiana Department of Child Services (DCS) that Father had held a knife to A.N. and pushed Mother. Mother and Father participated in a previous CHINS case in 2019 based on domestic violence within the family home.

[¶3] DCS Family Case Manager (FCM) Elizabeth Herndon investigated the latest report and interviewed both parents. Mother told FCM Herndon that Father's fists or objects he threw had caused the many holes in the walls of the family home. Mother also reported that Father threw a knife, which created a hole in the floor where it landed. Mother also pointed to a baseboard heater on which she said she was injured by Father. FCM Herndon photographed the home.

When Father spoke to FCM Herndon, he did not deny most of Mother's reports of violence.

[¶4] DCS petitioned to find Children to be CHINS based on allegations of violence by Father toward Mother in the presence of Children. Father denied the allegations of the CHINS petition. But Mother entered an agreement with DCS in which she admitted that Children are CHINS "because Mother and Father have not provided the Children with a home free of domestic violence, and the Children are in need of care, treatment, or rehabilitation that [C]hildren are not receiving and are unlikely to be provided or accepted without the coercive intervention of the Court." Appellee's App. Vol. II, p. 3. In that agreement, Mother also waived her right to a CHINS fact-finding hearing.

[¶5] Two weeks later, the trial court conducted a fact-finding hearing at which Mother did not testify. Over Father's objection, FCM Herndon testified about Mother's reports of Father's violence toward Mother in their home and in the presence of Children. The court concluded Children were CHINS based on these findings:

1) The child is less than 18 years of age.

2) The child resides in Tipton County.

3) Based upon the evidence and testimony presented, the Court finds that there was a physical altercation between the parents, in the presence of the children on or about October 18, 2022.

4) That as a result of this incident, Mother suffered an injury to her ankle.

5) That as a result of the altercations between the parents, the home has been damaged several times, including

a) Holes punched in interior walls[.]

b) Hole punched through an interior wall, which broke the exterior siding on the home.

c) The remains of several broken items (TV, Chairs, Storage Bins, Mirrors, etc.) in the home.

d) Hole punch in the backsplash over the sink.

6) Subsequently, there was another altercation between the parents, in the presence of the minor children, where Father attempted to prevent Mother from leaving. Father testified that this was due to Mother throwing a cup at him.

7) That the parents have a history of physical violence as demonstrated by their prior involvement with the Indiana Department of Child Services over allegations of Domestic Violence.

8) The children require services, which they are unlikely to receive without the coercive intervention of the Court.

Appellant's App. Vol. II, p. 36.

[¶6] The court later entered a dispositional order requiring Mother and Father to participate in services. Father appeals the CHINS determination.

Discussion and Decision

[¶7] Father contends DCS failed to meet its burden of proving Children were CHINS. DCS was required to prove three elements by a preponderance of the evidence: (1) Children are under the age of eighteen; (2) one of eleven different statutory circumstances exists that would make Children CHINS; and (3) Children need care, treatment, or rehabilitation that they are not receiving and are unlikely to receive without the coercive intervention of the court. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). Father focuses on the second element, arguing that the trial court erroneously determined that DCS met the statutory circumstance element through proof that Children were CHINS under Indiana Code § 31-34-1-1.

[¶8] Indiana Code § 31-34-1-1 defines a child as a CHINS when 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:

(A) when the parent, guardian, or custodian is financially able to do so; or

(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(C) is unlikely to be provided or accepted without the coercive intervention of the court.

[¶9] Children exposed to domestic violence in their homes have been found to be CHINS under Indiana Code § 31-34-1-1. See, e.g., Matter of K.A.H., 119 N.E.3d 1115, 1123-24 (Ind.Ct.App. 2019) (involving violence by mother's boyfriends against her and child's sibling); Matter of L.T., 145 N.E.3d 864, 871-72 (Ind.Ct.App. 2020) (involving violence by child's father against mother and siblings).

[¶10] When reviewing the trial court's CHINS judgment, we will neither reweigh the evidence nor judge witness credibility. K.D., 962 N.E.2d at 1253. When, as here, the trial court enters findings of fact and conclusions of law sua sponte, we apply a two-tiered standard of review requiring that we first consider whether the evidence supports the findings and then whether the findings support the judgment. Matter of AR.B., 199 N.E.3d 1232, 1237 (Ind.Ct.App. 2022). "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. We will reverse only if the CHINS determination is clearly erroneous. Id.

Domestic Violence Evidence

[¶11] Father argues that DCS did not prove any domestic violence occurred. He first contends that the record contains no evidence meeting the statutory definition of "domestic violence." Even if that statutory definition does not apply, Father argues that most of the evidence of domestic violence was inadmissible hearsay and that the remainder could not prove Children are CHINS. We conclude that evidence of domestic violence meeting the statutory definition upon which Father relies was not required. Furthermore, any erroneously admitted hearsay evidence of domestic violence was harmless because the remaining evidence and the unchallenged findings were sufficient to support the trial court's CHINS determination.

1. Statutory Definition of Domestic Violence

[¶12] Father contends that the evidence did not reveal "domestic violence" as defined in Indiana Code § 31-9-2-42 and therefore could not support the CHINS determination. That statute specifies in relevant part:

"Domestic or family violence" means, except for an act of selfdefense, the occurrence of one (1) or more of the following acts committed by a family or household member:

(1) Attempting to cause, threatening to cause, or causing physical harm to another family or household member without legal justification.

(2) Placing a family or household member in fear of physical harm without legal justification ....

Indiana Code § 31-9-2-42(1)-(2). The definitions in Indiana Code § 31-9-2-42 apply throughout Title 31 unless otherwise specified. Ind. Code § 31-9-1-1.

[¶13] Father's argument omits a key consideration. Proof of domestic violence satisfying Indiana Code § 31-9-2-42 is not required to prove that Children were CHINS under Indiana Code § 31-34-1-1, commonly known as the CHINS "neglect" statute. See Ar.B., 199 N.E.3d at 1237. DCS could prove Children were CHINS under Indiana Code § 31-34-1-1 by establishing, among other things, that Mother and Father had failed to provide a safe home or appropriate supervision for Children due to alleged altercations between Mother and Father. See, e.g., In re A.M., 121 N.E.3d 556 (Ind.Ct.App. 2019) (ruling that CHINS determination under Indiana Code § 31-34-1-1 was supported by findings showing child's home was unsafe as a result...