In the Matter of M.O., A Child in Need of Services, M.O., Child v. Indiana Department of Child Services, N.M., Mother, and Mi.O., Father, and Child Advocates, Inc. , 72 N.E.3d 527 ( 2017 )

FILED
Mar 21 2017, 6:17 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT M.O. ATTORNEYS FOR APPELLEE
(CHILD) INDIANA DEPARTMENT OF
Ruth Johnson CHILD SERVICES
Valerie K. Boots Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Robert J. Henke
Indianapolis, Indiana
David E. Corey
Jill M. Acklin Deputy Attorneys General
McNeely Stephenson Indianapolis, Indiana
Shelbyville, Indiana
ATTORNEY FOR APPELLEE N.M.
(MOTHER)
Megan Shipley
Marion County Public Defender
Agency
Appellate Division
Indianapolis, Indiana
ATTORNEY FOR APPELLEE MI.O.
(FATHER)
Darren Bedwell
Marion County Public Defender
Agency
Appellate Division
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
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In the Matter of M.O., A Child March 21, 2017
in Need of Services, Court of Appeals Case No.
49A05-1607-JC-1668
M.O., Child,
Appeal from the
Appellant-Respondent, Marion Superior Court
v. The Honorable
Marilyn A. Moores, Judge
The Honorable
Indiana Department of Child Geoffrey Gaither, Magistrate
Services,
Trial Court Cause No.
Appellee-Petitioner, 49D09-1505-JC-1729
N.M., Mother, and Mi.O.,
Father,
Appellees-Respondents,
and
Child Advocates, Inc.,
Appellee-Guardian ad Litem.
Kirsch, Judge.
[1] M.O. (“Child”) appeals the juvenile court’s adjudication, finding her to be a
Child in Need of Services (“CHINS”). We consolidate and restate the issues
raised by the parties as:
I. Whether the juvenile court erred in adjudicating Child as a
CHINS on grounds different than those set forth in the
CHINS petition; and
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II. Whether there was sufficient evidence presented to support
the CHINS adjudication.
[2] We affirm.
Facts and Procedural History
[3] Child was born on November 11, 1998 to N.M. (“Mother”) and Mi.O.
(“Father”) (together, “Parents”). Child was sixteen at the time that the present
CHINS case was filed. Child gave birth to her first son, J., when she was
fourteen years old, and J. was two years old when the present case was filed.
The Indiana Department of Child Services (“DCS”) had an open CHINS case
for J., and he had been placed with Father. Child gave birth to her second son,
A., on March 31, 2015. When the present case was filed, Child and A. were
living at the St. Joseph Carmelite Home in East Chicago (“Carmelite Home”).
Child’s placement in the Carmelite Home was arranged by the Marion County
Probation Department due to the fact that Child was on probation for a juvenile
delinquency case.
[4] On May 3, 2015, DCS received a report that the probation department was
planning to close Child’s case and that Child’s placement in the Carmelite
Home would end when the case was closed. At that time, DCS family case
manager Shannon Pickering (“FCM Pickering”) began an assessment of Child,
but was unable to speak with Child because Child refused to speak with anyone
from DCS on the phone. FCM Pickering spoke with both Mother and Father
to determine if Child could live with either of them. Father told FCM
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Pickering that he was not willing to have Child placed in his home because he
was concerned that Child was still exhibiting aggressive behaviors toward
adults and authority figures and worried that she would continue those
behaviors if she was placed in his home. Mother refused to take a drug screen,
which was a prerequisite to having Child placed in her home, and FCM
Pickering, therefore, did not feel comfortable placing Child in Mother’s home.
Based on this information, FCM Pickering and her supervisors believed that
coercive intervention was necessary to provide Child with housing and mental
health treatment. On May 27, 2015, DCS filed a petition alleging that Child
was a CHINS pursuant to Indiana Code section 31-34-1-1 (“CHINS 1”), which
involves parental inaction or neglect. On June 25, 2015, Parents filed a notice
of intent that they wished to assert that Child was a CHINS pursuant to Indiana
Code section 31-34-1-6 (“CHINS 6”), which involves the child’s own behaviors
endangering herself or others.
[5] Child left the Carmelite House at the end of June 2015 and was placed in
relative care with her cousin on July 21, 2015. About a week after being placed
with her cousin, Child ran away after a confrontation with her cousin. On July
30, 2015, a pretrial conference was held, at which FCM Brittny Smith (“FCM
Smith”) recommended emergency shelter care for Child because, at that time,
“no relative [was] able to handle [Child’s] behaviors.” Tr. at 11. Mother
testified at the hearing that Child could not live with her because Mother did
not want to jeopardize her Section 8 housing, which she needed for herself and
the three other children living with her. Id. at 23.
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[6] Child failed to appear for the pretrial conference and, instead, participated
telephonically. Child informed the court that she was at a friend’s apartment
and gave the address; while Child was still on the phone during the hearing,
FCM Smith went to the address to attempt to get Child and bring her to the
hearing. Child was not at the address she provided, but FCM Smith saw Child
open and close the door of another apartment. Although the juvenile court
ordered Child to go outside, she refused and told the court she had left out the
back door. Child also told the juvenile court that she had lied about being at
that apartment complex and that she was actually on the south side of
Indianapolis. FCM Smith was unable to locate Child at that time. While
speaking with the juvenile court, Child stated that she would not go to any of
the placements ordered by DCS and the court because she did not want to go
there. Id. at 37. The juvenile court ordered Child to report to the juvenile court
by 5:30 p.m. that evening, and Child responded, “I’ll be there when I feel like
it.” Id. at 51-52. On August 6, 2015, the juvenile court issued an order for
Child to appear at a show cause hearing; although Child was told about the
hearing by her attorney and FCM Smith, Child did not appear.
[7] A fact-finding hearing was held on November 6, 2015, at which Child did not
appear. At the time of the hearing, DCS had not had any contact with Child
since the first week in August, and she was described as being “on the run”
since July. Id. at 112. During the hearing, FCM Smith testified that Father
would only consider allowing Child to live with him if she successfully received
mental health treatment because he was concerned for the safety of the other
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children in his home. Id. at 115. FCM Smith did not recommend placing
Child with Mother because Mother had “numerous reports called in on her
current home,” Mother was allegedly in a relationship that involved domestic
violence, and Child did not want to be placed with Mother. Id. at 114, 124.
The juvenile court asked FCM Smith if she believed that Child was a CHINS
pursuant to CHINS 1 or CHINS 6. Id. at 133-34. FCM Smith initially
responded that DCS believed that Child was a CHINS pursuant to CHINS 1,
but after more questioning, she stated that, based on her experience, she
believed Child to be a CHINS pursuant to CHINS 6. Id. at 134-35.
[8] After DCS finished presenting its evidence, Parents moved for judgment on the
evidence as to DCS’s claim pursuant to CHINS 1. The juvenile court found
that DCS had failed to meet its burden on the claim of CHINS 1 and then
allowed Parents to present evidence that Child was a CHINS pursuant to
CHINS 6. Mother offered into evidence the transcript of the pretrial hearing, in
which Child failed to appear and avoided meeting with DCS, and emails
between FCM Smith and someone from Carmelite Home discussing Child’s
behavior while staying there. Father testified that Child was a threat to herself
and others and in need of mental health treatment and that she had attempted
suicide a couple of years prior to the hearing. Id. at 157-58.
[9] The juvenile court then took judicial notice of its own records that showed that
Child had sixteen referrals to the juvenile court, was a respondent in a
termination of parental rights case as to J., had been the subject of a previous
CHINS case, had five prior charges for being a runaway, had previously failed
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referrals for services, and had true findings for theft, resisting law enforcement,
and modification of her probation. Id. at 158-59. The juvenile court found
Child to be a CHINS pursuant to CHINS 6. Child now appeals.
Discussion and Decision
I. Grounds for CHINS Petition
[10] Both Child and DCS argue that the juvenile court erred in adjudicating Child a
CHINS on grounds different from those set forth in the CHINS petition filed by
DCS. Specifically, Child and DCS contend that it was error for the juvenile
court to adjudicate Child as a CHINS pursuant to CHINS 6, which requires
proof that the child substantially endangers his or her own health or the health
of another, even though the CHINS petition filed by DCS alleged that Child
was a CHINS pursuant to CHINS 1, which requires proof that the child’s
mental or physical condition is seriously endangered by the actions or inactions
of the parents.
[11] In the case of In re V.C., 867 N.E.2d 167 (Ind. Ct. App. 2007), this court was
presented with the issue of whether the trial court erred in adjudicating the child
a CHINS as to the mother on grounds different from those set forth in the
CHINS petition, and it turned to Indiana Trial Rule 15(B) to resolve the issue.
Id. at 177. Pursuant to Indiana Trial Rule 15(B), issues not set out in the
pleadings may be tried by the express or implied consent of the parties. Id. at
178. “The function of the issues, whether formed by the pleadings, pre-trial
orders, or contentions of the parties, is to provide a guide for the parties and the
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court as they proceed through trial.” Id. Although either party may demand
strict adherence to the issues raised before trial, if the trial court allows
introduction of an issue not raised before trial, an objecting party may seek a
reasonable continuance in order to prepare to litigate the new issue. Id.
However, where the trial concludes without objection to the new issue, the
evidence actually presented at trial controls. Id. Therefore, “neither pleadings,
pre-trial orders, nor theories proposed by the parties should frustrate the trier of
fact from finding the facts that a preponderance of the evidence permits.” Id.
[12] As fairness dictates certain restraints, there are limits to the amendment of
pleadings through implied consent. Id. Parties should be given some form of
notice that an issue not pleaded is now before the court. Id. This notice can be
overt and be expressly raised prior to, or sometime during, the trial, or it can be
implied “as where the evidence presented at trial is such that a reasonably
competent attorney would have recognized that the unpleaded issue was being
litigated.” Id.
[13] In the present case, we also turn to Trial Rule 15(B) to resolve the issue of
whether the juvenile court erred in adjudicating Child a CHINS on grounds
different from those set forth in the CHINS petition filed by DCS. Consent will
be found if DCS and Child had overt or implied notice that evidence was being
presented that Child was a CHINS pursuant to CHINS 6. On May 27, 2015,
DCS filed a petition alleging that Child was a CHINS pursuant to CHINS 1,
which involves parental inaction or neglect. On June 25, 2015, Parents filed a
notice of intent that they wished to assert that Child was a CHINS pursuant to
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CHINS 6, which involves the child’s own behaviors endangering herself or
others. Neither DCS nor Child objected to the notice of intent of Parents to
pursue a CHINS 6 adjudication. This filing by Parents put DCS and Child on
notice that Parents intended to present evidence that Child was a CHINS due to
Child substantially endangering her own health or the health of another and
that such would be an issue at trial.
[14] Additionally, at trial, after DCS presented its case, Parents moved for judgment
on the evidence as to DCS’s claim under CHINS 1. The juvenile court found
that DCS had failed to meet its burden on the claim of CHINS 1 and allowed
Parents to present evidence that Child was a CHINS pursuant to CHINS 6.
This evidence included the transcript of the pretrial hearing, in which Child
failed to appear and avoided meeting with DCS, emails between FCM Smith
and someone from Carmelite Home discussing Child’s behavior while staying
there, and testimony that Child was a threat to herself and others and in need of
mental health treatment and that she had attempted suicide a couple of years
prior to the hearing.
[15] The purpose behind Trial Rule 15(B) is to provide the parties with some
flexibility in litigating a case, and to promote justice by permitting evidence
brought in at trial to determine the liability of the parties. In re V.C., 867 N.E.2d
at 169. The evidence presented in the present case clearly indicates an issue
regarding Child’s actions that substantially endangered Child’s health or the
health of another was raised. This issue was therefore tried by consent under
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Trial Rule 15(B), and the juvenile court did not err in adjudicating Child as a
CHINS on grounds different than those set forth in the CHINS petition.
II. Sufficient Evidence
[16] CHINS proceedings are civil actions, and therefore, it must be proven by a
preponderance of the evidence that a child is a CHINS as defined by statute. In
re L.C., 23 N.E.3d 37, 39 (Ind. Ct. App. 2015) (citing In re N.E., 919 N.E.2d
102, 105 (Ind. 2010)), trans. denied. When we review a CHINS determination,
we neither reweigh the evidence nor judge the credibility of the witnesses. Id.
We consider only the evidence that supports the juvenile court’s decision and
the reasonable inferences drawn therefrom. Id. at 39-40. We will reverse only
upon a showing that the decision of the juvenile court was clearly erroneous.
Id. at 40.
[17] Child argues that the juvenile court erred in determining that she was a CHINS
under CHINS 6 because there was insufficient evidence to support the
adjudication. Child specifically contends that the evidence did not support that
she substantially endangered her own health or the health of another individual.
She asserts that her actions were defiant and delinquent, but did not rise to the
level of substantially endangering herself or others.
[18] Pursuant to Indiana Code section 31-34-1-6,
A child is a child in need of services if before the child becomes
eighteen (18) years of age:
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(1) the child substantially endangers the child’s own health or the
health of another individual; 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.
Therefore, there were three elements that were required to be proven for the
juvenile court to adjudicate Child to be a CHINS under CHINS 6: (1) Child
was under the age of eighteen; (2) Child substantially endangered her own
health or the health of another individual; and (3) Child needed care, treatment,
or rehabilitation that she was not receiving and that she was unlikely to be
provided or accept without the coercive intervention of the court. Child does
not contend that there was not sufficient evidence to prove that she was under
the age of eighteen or that she needs care, treatment, or rehabilitation that she is
not receiving and that she is unlikely to receive without the coercive
intervention of the court. We, therefore, only focus on whether there was
sufficient evidence to prove that she substantially endangered her own health or
that of another.
[19] Here, the evidence presented showed that Child, who was only sixteen at the
time the CHINS case was initiated, had a history of running away from her
placements. At the time of the pretrial conference on July 30, 2015, Child had
run away from her cousin’s home where she was placed after completing her
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time at the Carmelite Home. During the hearing, the juvenile court spoke with
Child on the telephone and ordered her to appear at the court, but Child
refused. Tr. at 51-52. Child was still on the run and did not appear at the show
cause hearing a week later; she also remained on the run at the time of the fact-
finding hearing on November 6, 2015. At the fact-finding hearing, the
transcript of the pretrial hearing, which reflected the refusal of Child to follow
the juvenile court’s order, was admitted into evidence. The juvenile court also
took judicial notice of the fact that Child had five prior charges for being a
runaway. The evidence that Child was on the run to avoid the juvenile court’s
and DCS’s authority supported the juvenile court’s determination that Child
substantially endangered her health due to the fact that bad things could happen
to a young girl out on her own trying to avoid authority.
[20] Additionally, the juvenile court took judicial notice of its own records that
showed that Child had sixteen referrals to the juvenile court, was a respondent
in a termination of parental rights case as to J., had been the subject of a
previous CHINS case, had previously failed referrals for services, and had true
findings for theft, resisting law enforcement, and modification of her probation.
Id. at 158-59. Mother offered into evidence emails between FCM Smith and
someone from Carmelite Home discussing Child’s behavior while staying there.
Father testified that Child was a threat to herself and others and in need of
mental health treatment and that she had attempted suicide a couple of years
prior to the hearing. Id. at 157-58. We conclude that, based on the evidence
presented at the fact-finding hearing, it was proven by a preponderance of the
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evidence that Child substantially endangered her own health or the health of
another individual and that Child was a CHINS as defined by CHINS 6. The
juvenile court did not err in adjudicating Child to be a CHINS pursuant to
CHINS 6.
[21] Affirmed.
[22] Robb, J., and Barnes, J., concur.
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