In the Matter of J.C. and K.C., Children in Need of Services, and J.S. (Mother) and M.S. (Stepfather) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jan 29 2016, 7:55 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Robert E. Shive Gregory F. Zoeller Hollingsworth & Zivitz, P.C. Attorney General of Indiana Carmel, Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of J.C. and K.C., January 29, 2016 Children in Need of Services, Court of Appeals Case No. and 54A05-1506-JC-568 Appeal from the Montgomery J.S. (Mother) and M.S. Circuit Court (Stepfather), The Honorable Harry A. Siamas, Judge Appellants-Respondents, Trial Court Cause Nos. 54C01-1409-JC-203, -205 v.

Indiana Department of Child Services, Appellee-Petitioner

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Crone, Judge.

Case Summary [1] J.S. (“Mother”) and M.S. (“Stepfather) appeal the trial court’s adjudication of

minor children J.C. and K.C. as children in need of services (“CHINS”). The

sole restated issue for our review is whether sufficient evidence supports the trial

court’s determination that the children are CHINS pursuant to Indiana Code

Sections 31-34-1-1 and -3. Finding the evidence sufficient, we affirm.

Facts and Procedural History [2] In September 2014, the Montgomery County Department of Child Services

(“DCS”) filed CHINS petitions regarding J.C. and K.C. after K.C. reported that

Stepfather had been molesting her since she was seven years old and that he

had physically abused J.C. The children were removed from the home and

subsequently placed in the care of Father on September 28, 2014. In November

2014, DCS filed amended petitions after J.C. reported that he had been both

physically and sexually abused by Stepfather. Factfinding proceedings were

held on January 15, February 12, and March 13, 2015. In its order dated

March 31, 2015, the trial court made the following relevant findings of fact: 1

1 The trial court’s order refers to the parties by their full names. We use “Mother,” “Stepfather,” “Father,” and initials where appropriate.

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1. J.C. was born on January 12, 2002. His parents are Mother and Father.

2. K.C. was born December 17, 1999. Her parents are Mother and Father.

3. J.S. was born November 2, 2006. His parents are Mother and Stepfather.

4. Mother and Stepfather met and began living together in 2005 when they lived in Florida. For the most part all three children lived with Mother and Stepfather except for brief periods when K.C. and J.C. lived with their father. The family relocated to Indiana in 2012. Mother and Stepfather married in June 2014. Both Mother and Stepfather worked in teaching positions in Florida and Indiana.

5. The Florida Department of Families and Children investigated alleged physical abuse of K.C. or J.C. on three occasions. None of these reports were substantiated although family services were recommended more than once.

6. Mother admittedly delegated all responsibility for disciplining the children to Stepfather. K.C. and J.C. resented Stepfather’s discipline of them and this continued to be a source of conflict within the family.

7. K.C. testified that Stepfather had sexually molested her on many occasions for many years both in Florida and Indiana. K.C. has repeated these allegations to various people, in her deposition, and while testifying during the fact finding hearing. While her reports and testimony have inconsistencies in some details and she seems to have remembered more incidents of molestations since her first report in September 2014 the Court finds her to be credible. Stepfather touched K.C.’s breasts, vagina and buttocks inappropriately both in Florida and Indiana. The last touching occurred in 2014. K.C. told her mother that

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Stepfather molested her. Mother did not believe her. At the time of the hearing both Mother and Stepfather continue to deny that Stepfather molested K.C.

8. As the result of K.C.’s traumatic experiences she has demonstrated self-harming behaviors including cutting, suicide ideation, depression, anxiety, low self esteem, confusion about her relationship with her mother, and she is at risk for substance abuse. She feels powerless and hopeless. K.C. needs intensive mental health treatment to address the emotional and psychological problems related to the trauma.

9. Mother has had only one contact with K.C. or J.C. since the DCS took the children into protective custody in September 2014. Mother does not want to reunite with K.C. and does not appear to be motivated to reunite with J.C. either.

10. Stepfather has subjected J.C. to inappropriate discipline on several occasions. J.C. is a hemophiliac and bruises easily. Stepfather has hit or shoved J.C. with his hands in Indiana.

11. Father admits that J.C. and K.C. need services that he does not believe that he can provide, and he believes that the DCS should remain involved with the children so that K.C. and J.C. can continue to receive mental health treatment in order to address the issues that are troubling both children.

12. The DCS removed K.C. and J.C. from Mother in September 2014 and both children were placed with Father who lives in Illinois. Thereafter Father obtained legal custody of K.C. and J.C.

13. Both J.C. and K.C. require services including mental health treatment in order to deal with issues of trauma, abuse and separation from their mother, as well as other mental health issues.

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Appellants’ App. at 52-54. [3] Based upon these findings of fact, the trial court determined that DCS proved

by a preponderance of the evidence that J.C. and K.C. were CHINS pursuant

to Indiana Code Sections 31-34-1-1 and -3. Specifically, the court concluded

that the preponderance of the evidence supports that K.C. was molested while

in Mother’s care and that Mother would not protect her from future abuse. The

court further concluded that the preponderance of the evidence supports that

J.C. was physically abused while in Mother’s care and that Mother would not

protect him from future abuse. The trial court found that “Mother is totally

aligned with [Stepfather] and against her two older children” and that “Mother

does not want the older children back in her home.” Id. at 56-57. Accordingly,

the court adjudicated J.C. and K.C. as CHINS and ordered that they remain in

the placement with Father until further order of the court. 2 Mother and

Stepfather now appeal. 3

Discussion and Decision [4] Mother and Stepfather contend that the evidence is insufficient to support the

trial court’s adjudication of J.C. and K.C. as CHINS. Indiana courts recognize

2 As found by the trial court, Father admitted that J.C. and K.C. were CHINS and requested that DCS stay involved with the children so that they can receive the therapy and counseling they need. He does not participate in this appeal. 3 Although a CHINS petition was also filed regarding the minor child J.S., the trial court determined that DCS failed to prove by a preponderance of the evidence that J.S. was a CHINS, and thus dismissed the petition as to him. Neither party appeals that determination.

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that parents have a fundamental right to raise their children without undue

influence from the State, but that right is limited by the State’s compelling

interest in protecting the welfare of children. In re Ju.L., 952 N.E.2d 771, 776

(Ind. Ct. App. 2011). A CHINS proceeding is a civil action in which the State

bears the burden of proving by a preponderance of the evidence that a child

meets the statutory definition of a CHINS. In re N.E., 919 N.E.2d 102, 105

(Ind. 2010); Ind. Code § 31-34-12-3. [5] Here, the trial court adjudicated the children as CHINS pursuant to Indiana

Code Sections 31-34-1-1 and -3. To meet its burden of establishing CHINS

status pursuant to Indiana Code Section 31-34-1-1, DCS must prove that the

child is under age eighteen and that

(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.

[6] Indiana Code Section 31-34-1-3(a) and -(b) provide in relevant part that a child

is a CHINS if the child is under age eighteen and the victim of an enumerated

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sex offense 4 or lives in the same household as another child who is the victim of

an enumerated sex offense and, “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.” Our

supreme court has noted that the fact that a child’s needs are unlikely to be met

without coercive intervention is perhaps the most critical of the considerations

when determining whether the State’s intrusion into the ordinarily private

sphere of the family is warranted. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). [7] When reviewing the sufficiency of the evidence to support a CHINS

adjudication, we will not reweigh the evidence or judge witness credibility. In

re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). We will consider only the evidence

favorable to the trial court’s judgment and the reasonable inferences drawn

therefrom. Id. Because no statute expressly requires formal findings in a

CHINS factfinding order, and because it appears that neither party in this case

requested them pursuant to Indiana Trial Rule 52(A), as to the issues covered

by the court’s sua sponte findings, we will determine whether the evidence

supports the findings and whether the findings support the judgment. S.D., 2

N.E.3d at 1287. We review the remaining issues under the general judgment

standard, and we will affirm the judgment if it can be sustained on any legal

theory supported by the evidence. Id.

4 Here, the trial court found by a preponderance of the evidence that K.C. was a victim of child molesting. See Ind. Code § 35-42-4-3.

Court of Appeals of Indiana | Memorandum Decision 54A05-1506-JC-568| January 29, 2016 Page 7 of 10 [8] Mother and Stepfather argue that “the weight of the evidence does not support

the judgment” that J.C. and K.C. are CHINS. Appellants’ Br. at 24. The crux

of their argument is that, absent any physical or medical evidence to

substantiate the sexual abuse allegations against Stepfather, the evidence is

insufficient to support a CHINS adjudication pursuant to Indiana Code Section

31-34-1-3. More precisely, they assert that “inconsistencies” in K.C.’s various

accounts of sexual abuse demonstrate that her testimony regarding the abuse

was not credible and cannot support, by a preponderance of the evidence, the

trial court’s conclusion that Stepfather molested K.C. Id. at 29. [9] First, we note that Mother and Stepfather cite no authority, and we are

unaware of any, that requires DCS to present physical or medical evidence to

support sexual abuse allegations in a CHINS proceeding. Moreover, our

review of the record reveals that K.C.’s testimony during factfinding was

copious, graphic, and heart-wrenching regarding the molestations perpetrated

by Stepfather. The trial court specifically noted that although K.C.’s prior

reports of the sexual abuse and her testimony have “inconsistencies in some

details” the court found her to be “credible.” Appellant’s App. at 53. We

interpret the entirety of Mother and Stepfather’s argument as an invitation for

this Court to reweigh the evidence and reassess witness credibility, which we

may not do. DCS presented sufficient evidence to support the trial court’s

determination that K.C. was the victim of a sex offense as required by Indiana

Code Section 31-34-1-3.

Court of Appeals of Indiana | Memorandum Decision 54A05-1506-JC-568| January 29, 2016 Page 8 of 10 [10] Mother and Stepfather also maintain that the trial court’s findings are

“insufficiently articulated” and too vague to support CHINS adjudications

under either Indiana Code Section 31-34-1-1 or -3 because the court did not

specifically delineate the statutory “subsection applied,” “the elements of the

subsection” that were met, or “the specific facts found to qualify K.C. and J.C.

as children in need of services.” Appellants’ Br. at 31-32. We could not

disagree more. We reiterate that the trial court here was not required to make

specific findings at all, much less with the specificity urged by Mother and

Stepfather. See S.D., 2 N.E.3d at 1287. In any event, the trial court cited both

applicable statutes and made adequately detailed factual findings regarding the

sexual abuse suffered by K.C. and the physical abuse suffered by J.C. at the

hands of Stepfather, as well as the severe emotional trauma experienced by the

children as a result. The court made further findings regarding Mother’s refusal

to intervene to protect the children despite her knowledge of the abuse. Indeed,

the court found that Mother continues to disbelieve that Stepfather has ever

molested, abused, or endangered J.C. and K.C. Based upon our review of the

record as a whole and the evidence most favorable to the judgment, there is

little question that, pursuant to both Indiana Code Sections 31-34-1-1 and -3,

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J.C. and K.C. need care, treatment, or rehabilitation that is unlikely to be

provided or accepted without the coercive intervention of the court. 5 [11] In sum, sufficient evidence supports the trial court’s findings, and those findings

support the trial court’s CHINS adjudication. The judgment of the trial court is

affirmed. [12] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

5 We are unpersuaded by Mother and Stepfather’s claim that the coercive intervention of the court was unnecessary here because, by the time of the factfinding hearing, Father had been granted legal and physical custody of J.C. and K.C. pursuant to a modified dissolution decree between Mother and Father. See S.D., 2 N.E.3d at 1290 (CHINS finding should consider the family’s condition not just when the case is filed, but also when it is heard). First, Mother and Stepfather fail to direct us to any evidence to support their claim, and we will not search the record on their behalf. Therefore, the argument is waived. See Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 729-30 (Ind. Ct. App. 2009) (it is a complaining party’s duty pursuant to Ind. Appellate Rule 46(A)(8)(a) to direct our attention to the portion of the record supporting his contention; the purpose of the rule is to relieve courts of the burden of searching the record and stating a party’s case for him; waiver is appropriate where noncompliance with appellate rules impedes our review). Waiver notwithstanding, Father admitted that J.C. and K.C. were CHINS, and regardless of the alleged custody arrangement, the evidence supports the trial court’s conclusion that the coercive intervention of the court is necessary to ensure that the children continue to receive the needed mental health therapy and counseling that Father stated he is financially unable to provide.

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