In the Matter of: La.H., Le.H., Lo.H., Ma.H., S.W., W.H., and Me.H. (Minor Children), Children in Need of Services and M.H. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing May 31 2017, 9:39 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: La.H., Le.H., May 31, 2017
Lo.H., Ma.H., S.W., W.H., and Court of Appeals Case No.
Me.H. (Minor Children), 90A02-1609-JC-2135
Children in Need of Services Appeal from the Wells Circuit
and Court
The Honorable Kenton W.
M.H. (Father),
Kiracofe, Judge
Appellants-Respondents, Trial Court Cause Nos.
90C01-1603-JC-15
v.
90C01-1603-JC-16
90C01-1603-JC-17
The Indiana Department of 90C01-1603-JC-18
Child Services, 90C01-1603-JC-20
90C01-1603-JC-21
Appellee-Petitioner. 90C01-1603-JC-22
Robb, Judge.
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Case Summary and Issue
[1] M.H. (“Father”) appeals the juvenile court’s adjudication of his seven children
(“Children”) as children in need of services (“CHINS”). Father raises four
issues on appeal, which we consolidate and restate as a single issue: whether the
juvenile court’s CHINS determination is clearly erroneous. Concluding the
juvenile court’s CHINS determination is not clearly erroneous, we affirm.
Facts and Procedural History
[2] Father and R.H. (“Mother”)1 are the parents of six children, ten-year-old
Ma.H., eight-year-old Le.H, seven-year-old Lo.H., five-year-old W.H., three-
year-old La.H., and one-year-old Me.H. Mother also has two children from a
prior relationship, eighteen-year-old R.W. and fifteen-year-old S.W. S.W.
requires the assistance of a wheelchair and is unable to verbally communicate
due to cerebral palsy.
[3] On March 28, 2016, the Indiana Department of Child Services (“DCS”)
received a report alleging Father had sexually abused his stepdaughter, R.W.,
multiple times throughout her childhood. One week prior to the DCS receiving
that report, then seventeen-year-old R.W. left home without permission and
1
Mother does not participate in this appeal.
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began residing with her maternal aunt and uncle. R.W. turned eighteen on the
same day the DCS began its investigation.
[4] In response to the report and allegations, Wendy Garrett, a DCS Family Case
Manager, visited Mother and Father’s home. Father answered the door but
refused to permit Garrett to enter the home. Mother and Father refused to
cooperate with the investigation at that time.
[5] Following an interview with R.W. concerning her allegations of sexual abuse,
the DCS removed the Children from the home and placed them with their
maternal aunt and uncle. While removing the Children, Garrett observed the
Children had “incredibly poor hygiene” and noted the Children’s hair was
“matted.” Transcript, Volume II at 16. Garrett further observed Me.H.’s
diaper was “literally falling off, leaking.” Id. As to the condition of the home,
Garrett described it as “deplorable” and “unsanitary.” Id. Garrett observed
food, debris, and trash littering the floor of the home, a cluttered kitchen filled
with dirty dishes, and piles of soiled clothing throughout the home. Garrett
also noted the home did not appear to have a shower or access to water except
through a hose brought in from outside the home. There also appeared to be
structural issues with the home with portions of the ceiling collapsing over the
Children’s sleeping space. Garrett was not permitted to view the upstairs area
because it “wasn’t anything that had been worked on.” Id. at 19.
[6] On March 31, 2016, the DCS filed verified petitions alleging each child to be a
CHINS. The DCS later moved to dismiss the CHINS petition as to R.W.
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because she reached the age of eighteen. Mother and Father denied the
allegations contained in the verified petitions.
[7] On June 10, 2016, the juvenile court held a fact-finding hearing at which R.W.
testified concerning her allegations of sexual abuse. R.W. testified the sexual
abuse began when she was a young girl. During one instance, R.W. stated
Father called her into the bedroom of their home. When she entered the room,
he pulled her on top of him and put his hands down her pants. R.W. did not
remember how old she was when this incident occurred. During another
instance when she was about twelve years old, R.W. awoke on the living room
couch and Father was on top of her. R.W. stated Father’s penis touched her
vagina. Father told R.W. not to tell anyone or he would do it again. R.W.
attempted to speak to Mother about the incident but was too embarrassed to do
so. When R.W. was about thirteen years old, Father told R.W. to take water to
their horses in the barn and insisted on coming with her. R.W. stated she knew
what Father was going to do. In the barn, Father ordered R.W. to lay on a bale
of hay and pulled his pants down. Father then inserted his fingers into R.W.’s
vagina. Father also inserted his penis into her vagina. R.W. stated the sexual
abuse stopped when she was about fifteen or sixteen years old.
[8] R.W. testified she did not believe Father has abused any of her siblings,
although she worried it may happen. She also stated that when she lived in the
home, she was responsible for helping Mother and Father with the other
Children, cleaning the house, and feeding and bathing S.W. R.W. also thought
Father punished S.W. with unnecessary force. Occasionally, S.W. would cry
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uncontrollably and the family struggled to calm her down. Father used to
spank her over and over in an attempt to make her stop, but she would not.
Mother would cry and tell Father “she’s not going to stop crying if [you] just
keep[] beating her.” Id. at 42.
[9] On June 11, 2016, the juvenile court issued its order which included its findings
of fact and conclusions thereon. The juvenile court found R.W.’s testimony
and allegations to be true and adjudicated all seven Children as CHINS.2 In
addition to the sexual abuse of R.W., the juvenile court also found the Children
to be CHINS due to the poor condition of the home, the fact Father remained
in the home after R.W.’s allegations came to light, and the fact R.W., who
provided care and supervision for the Children, was no longer living in the
home. The juvenile court ordered the Children to remain in relative placement.
On August 18, 2016, the juvenile court held a dispositional hearing at which it
adopted the DCS’ recommendations to have Mother and Father participate in
services including home based counseling, a parental assessment, random drug
screens, and a psychological evaluation. Father was also ordered to complete a
substance abuse assessment and sex offender treatment program. Father now
appeals. Additional facts will be added as necessary.
2
R.W. was not adjudicated as a CHINS.
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Discussion and Decision
I. Standard of Review
[10] When reviewing a juvenile court’s CHINS determination, we neither reweigh
the evidence nor reassess witness credibility. In re K.D., 962 N.E.2d 1249, 1253
(Ind. 2012). We consider only the evidence that supports the juvenile court’s
decision and reasonable inferences drawn therefrom. Id.
[11] Where, as here, the juvenile court enters findings of fact and conclusions sua
sponte following the fact-finding hearing, we apply a two-tiered standard of
review to the issues covered by the findings: (1) we determine whether the
evidence supports the findings, and (2) whether the findings support the
judgment. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). We will reverse only
upon a showing the court’s decision was clearly erroneous. In re K.D., 962
N.E.2d at 1253. A finding of fact is clearly erroneous if the record lacks
evidence, or reasonable inferences from the evidence, to support it. In re
Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied. The
judgment is clearly erroneous if we are left with a “definite and firm conviction
that a mistake has been made.” In re S.L., 997 N.E.2d 1114, 1123 (Ind. Ct.
App. 2013).
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II. CHINS Determination
[12] Father contends the juvenile court’s judgment adjudicating the Children as
CHINS is clearly erroneous. The juvenile court adjudicated the Children as
CHINS under Indiana Code section 31-34-1-1,3 which provides,
A child is a child in need of services if before the child becomes
eighteen (18) years of age:
(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.
In other words, the statute requires the State to prove three basic elements: (1)
the parent’s actions or inactions have seriously endangered the children, (2) the
children’s needs are unmet, and (3) the children’s needs are unlikely to be met
without State intervention. In re S.D., 2 N.E.3d at 1287. Because a CHINS
3
The juvenile court also adjudicated S.W. a CHINS under Indiana Code section 31-34-1-2, which states, “[a]
child is a child in need of services if before the child becomes eighteen (18) years of age the child’s physical or
mental health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or
custodian and the child needs care, treatment, or rehabilitation that the child is not receiving and is unlikely
to be provided or accepted without the coercive intervention of the court.”
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proceeding is a civil proceeding, the State must prove the child is a CHINS by a
preponderance of the evidence. In re K.D., 962 N.E.2d at 1253.
[13] Father first argues the juvenile court’s determination the Children are CHINS
due to the long-term sexual abuse of R.W. is clearly erroneous. Father cites to
In re D.H., 859 N.E.2d 737 (Ind. Ct. App. 2007). There, seventeen-year-old
S.L. alleged she had been molested by her stepfather for several years as a
young girl. The DCS removed the other five children from the home and filed
verified petitions alleging the children to be CHINS. In its fact-finding order,
the juvenile court found S.L.’s testimony to be credible, but specifically declined
to find the allegations to be true or not true. Based on its findings, the juvenile
court concluded that “if the allegations were true, the Children would be
endangered.” Id. at 744. On appeal, we reversed the juvenile court’s decision
as clearly erroneous, stating, “to permit the Children to be declared CHINS
based upon speculation that the Children would be endangered if the
allegations regarding S.L. were true would contravene the CHINS statutes.” Id.
[14] Father argues that, similar to In re D.H., the juvenile court’s decision was based
on speculation of sexual abuse.4 Father is incorrect and In re D.H. is of no
4
Father alleges “the [juvenile] court found R.W. credible despite the fact that her testimony did not conform
to the CHINS petitions.” Corrected Brief of Appellant at 15. Although the juvenile court did not find the
allegations in the CHINS petitions to be true in their entirety, Father’s contention R.W.’s testimony did not
conform to the CHINS petitions is simply not accurate. In addition, Father also points to the juvenile court’s
findings regarding R.W.’s refusal or inability to discuss the abuse with Mother and a prior interview with the
DCS in which she denied any sexual abuse had occurred. We interpret this as a request to reweigh the
evidence, which we will not do. In re K.D., 962 N.E.2d at 1253.
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benefit to him in this case. Unlike in In re D.H., the juvenile court specifically
found R.W.’s testimony to be credible and true. The juvenile court’s finding of
fact states, “The Court finds that the allegations contained in the Verified
Petitions Alleging Child in Need of Services . . . as modified consistent with the
testimony and resultant findings contained herein as to the sexual abuse of
[R.W.] are true.” Appendix of Appellant, Volume II at 169. Thus, the juvenile
court’s determination was not based on speculation, but upon testimony from
R.W. which it found to be true. We further note the CHINS statutes do not
require a court to wait until a tragedy occurs to intervene. In re A.H., 913
N.E.2d 303, 306 (Ind. Ct. App. 2009). And although R.W. stated she did not
believe Father has sexually abused any of the other Children, she did worry for
their safety and thought it could occur again. Given this evidence and the
juvenile court’s findings, we cannot say its adjudication of the Children as
CHINS is clearly erroneous.5
[15] Father also contends the juvenile court’s judgment regarding coercive
intervention of the court is clearly erroneous. Here, the juvenile court
determined coercive intervention was necessary because Mother and Father
remain living together, they did not comply with the DCS’ investigation, and
5
Even assuming the juvenile court’s judgment regarding the sexual abuse allegations is clearly erroneous, we
note Father does not challenge the juvenile court’s determination the Children’s physical or mental
conditions were seriously impaired or seriously endangered due to the poor condition of the home.
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they refused to acknowledge the Children’s poor living conditions or the sexual
abuse of R.W.
[16] Our supreme court has observed that the “coercive intervention” element
“guards against unwarranted State interference in family life, reserving that
intrusion for families where parents lack the ability to provide for their children,
not merely where they encounter difficulty in meeting a child’s needs.” In re
S.D., 2 N.E.3d at 1287 (internal quotations omitted). When determining
CHINS status under Indiana Code section 31-34-1-1, particularly the “coercive
intervention” element, courts “should consider the family’s condition not just
when the case was filed, but also when it is heard.” In re D.J., 68 N.E.3d 574,
580 (Ind. 2017) (citation omitted).
[17] The juvenile court’s CHINS order included factual findings supporting its
conclusion that coercive intervention was necessary at the time the DCS
received the initial report and allegations. At the time of the fact-finding
hearing, Mother and Father had only begun to participate in services. Those
services included homemaker and parent-aid services to both Mother and
Father. DCS Family Case Manager Alyssa Justice stated both parents were
complying with the services offered. However, Justice also stated Mother and
Father had only recently started participating in services and she would not feel
comfortable with the Children returning to Mother and Father’s home at that
time, given the severity of the allegations and the unimproved condition of the
home. Further, Justice stated there had been no acknowledgment from either
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parent of the DCS’ allegations. Accordingly, the juvenile court’s determination
that coercive intervention of the court was necessary is not clearly erroneous.6
Conclusion
[18] The juvenile court’s CHINS order is not clearly erroneous. Accordingly, the
judgment of the juvenile court is affirmed.
[19] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
6
Because we affirm the juvenile court’s adjudication of the Children as CHINS under Indiana Code section
31-34-1-1, and S.W. is included in that adjudication, we do not separately address Father’s argument the
juvenile court’s adjudication of S.W. as a CHINS under Indiana Code section 31-34-1-2 is clearly erroneous.
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