In the Matter of: K.S. (Minor Child), and C.S. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 05 2016, 8:35 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of Court of Appeals and Tax Court establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Gregory F. Zoeller Leeman Law Offices Attorney General of Indiana Logansport, Indiana Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: December 5, 2016 K.S. (Minor Child) Court of Appeals Case No. Child in Need of Services 09A04-1604-JC-872 and Appeal from the Cass Circuit Court C.S. (Father), The Honorable Leo T. Burns, Jr., Appellant-Respondent, Judge

v. Juvenile Court Cause No. 09C01-1601-JC-4

The Indiana Department of Child Services, Appellee-Petitioner.

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 1 of 11

Case Summary and Issue [1] C.S. (“Father”) appeals the juvenile court’s adjudication of his child, K.S., as a

child in need of services (“CHINS”). He raises two issues for our review, one

of which we find dispositive: whether Father was deprived of due process.

Concluding Father was deprived of due process, we reverse and remand with

instructions.

Facts and Procedural History [2] In April 2013, C.H. (“Mother”) gave birth to twins, M.H. and B.H (“Twins”).

Father is not the Twins’ legal father, but Father began acting in a custodial

capacity around August 2013 when he and Mother began dating. Mother and

Father then had a child, K.S., in July 2014. In November 2015, Father and

Mother ended their relationship and the Twins and K.S. moved in with Father. [3] On December 23, 2015, Cass County Family Case Manager Josh Bault

received a report Father and Mother neglected the children. Specifically, the

report alleged instances of domestic violence, physical abuse of the children,

drug use in the home, and drug use in the presence of the children. Bault then

visited Father’s home. Father acknowledged he sometimes used a ruler to

discipline his children, but Bault did not observe any signs of physical abuse to

the children. In addition, Father admitted to periodically smoking marijuana.

Bault also spoke with Mother by phone and Mother admitted to smoking

marijuana. Father refused to submit to a drug screen and neither Mother nor

Father gave Bault permission to screen the children for drugs. Ultimately, Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 2 of 11

Bault did not deem removal necessary and scheduled a meeting with Mother on

January 5, 2016. [4] On January 5, 2016, Bault met with Father, Mother, and the children at

Father’s home. Mother arrived smelling of alcohol and admitted to having a

few beers prior to the meeting. Mother and the children submitted to an oral

swab drug screening; Father declined. Although not clear from the record, it

appears Department of Child Services (“DCS”) alleged the results of the drug

screens indicated Mother and the children tested positive for

tetrahydrocannabinol (“THC”), a metabolite of marijuana. All three children

were immediately removed and DCS placed K.S. in foster care. [5] On January 8, 2016, DCS filed a petition alleging K.S. was a CHINS. Under a

separate cause number, DCS also filed a petition alleging the Twins were

CHINS. The juvenile court first held a fact-finding hearing with regard to the

Twins and only Mother attended. Nothing pertaining to the Twins’ CHINS

proceedings is included in the current record on appeal,1 but the record does

note Mother admitted the Twins and K.S. were CHINS at the Twins’ fact-

finding hearing.

1 Although not clear from the record, it appears DCS admitted evidence at this fact-finding hearing with regard to the results of Mother’s and the children’s drug screens. In addition, it further appears Bault testified as to some potential contamination of the children’s drug screens. Again, this evidence has not been included as a part of the current record on appeal.

Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 3 of 11 [6] On February 17, 2016, the juvenile court held a fact-finding hearing regarding

K.S., which both Mother and Father attended. At the beginning of the hearing,

the juvenile court stated its intention to incorporate the records from the Twins’

fact-finding hearing, namely to show Mother admitted K.S. is a CHINS:

[Juvenile Court:] With regard to [Mother], any objection if I incorporated the records from [the Twins’ CHINS proceeding] showing her admission . . . with regard to [K.S.]? [Mother’s Counsel:] No, that would be fine, Judge. [Juvenile Court:] [Father’s counsel], what does [Father] intend to do with regard to the fact-finding with regard to [K.S.]? [Father’s Counsel:] [Father] is in kind of an awkward place, he’s not the custodial parent, there’s been never a judicial determination of paternity, . . . he thinks the child is perfectly fine with him, and wants her back, but I am not sure what his standing is. He, he denies [K.S.] is in need of services still, because he is perfectly able to do it. I’ve explained to him that the DCS may not be able to place her there though because he’s not the custodial parent nor has the judicial determination been made that he is a parent.

Transcript at 23-24. The juvenile court believed the testimony could establish

paternity and proceeded with the fact-finding hearing.2 [7] Father testified first and admitted to occasionally smoking marijuana. The

following colloquy then occurred:

[DCS:] You don’t know how [the children] tested positive for drugs?

2 The juvenile court concluded Father is K.S.’s legal father. The State does not challenge this conclusion.

Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 4 of 11

[Father:] Yeah, I know how they tested positive. [DCS:] And how is that? [Father:] [Mother] touched the samples. [DCS:] And she had enough saliva on her hand for one of the drug screens? [Father:] Sweat, body fluids. [DCS:] And what about those screens she didn’t touch? [Father:] She touched every one of them.

Id. at 27. At this point in the fact-finding hearing, no evidence regarding the

drug screens had been admitted into evidence and no other discussions with

Father regarding the drug screens occurred. [8] DCS then called Bault to testify as to his administration of the drug screens:

[DCS:] [D]id you ask everyone present to submit to the drug screens? [Bault:] I did, and [Mother] stated she would. [Father] stated he would not, and [Mother] gave permission for the children to be screened as well. *** [DCS:] And what were the results of [Mother’s] drug screen? [Bault:] [Mother’s] drug screen was positive for THC, which is a metabolite of marijuana. [DCS:] And who, do you recall whose drug screen you administered next? [Bault:] Honestly, I don’t know. There were three children that we decided that we were going to administer to, huh, and children do take assistance, that is not abnormal, and it’s not also abnormal for children to fight the process because they don’t want a cotton swab stuck in their mouth. So none of those . . . I know we talked about [the administration of the tests] in the last hearing, but nothing abnormal happened other than the two things that were suggested . . . that one of the swabs did drop to the floor at one point during the process and one swab had to be Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 5 of 11

taken out of the mouth by the mother and placed into the test tube. [DCS:] And how many drug screens have [you] administered, if you, approximate? [Father’s Counsel:] Judge that in [sic] interesting, but I don’t think it is relevant, what’s relevant is what happened here; we’ve been over that ground several times already. I object to the repetitive testimony. *** [Juvenile Court:] Yeah, my, my inclination would be to overrule the objection, I think it could come in, my ultimate concern is I incorporated the records from [the Twins’ hearing], I did that because I was ahead of myself because I thought [Father] was in, I thought we were lining up for an admission, so to the extent that I’ve heard that testimony, unless there was a stipulation by the parties, the practice here in the court is . . . to at least have the testing agency testify, so if the ultimate goal is to get the results of the children in, I am tipping my hand, I am not going to rely on that evidence.

Id. at 37-41. Bault never testified whether the children tested positive for drugs.

In addition, it does not appear the parties stipulated to the admission of the

results of the drug screens nor did a representative of the testing agency testify

as to the results of the drug screens. [9] On February 18, 2016, the juvenile court adjudicated K.S. a CHINS.

Specifically, the court made four findings in support of its conclusion: (1)

Mother was under the influence of alcohol when she met with Bault, (2)

Mother and children submitted to oral drug screens, (3) Father refused to

submit to a drug screen but admitted to using marijuana, and (4) Mother and

the children tested positive for THC. Following a dispositional hearing, the

Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 6 of 11

juvenile court ordered Father to participate in services and further ordered

K.S.’s continued placement in foster care. This appeal ensued.

Discussion and Decision I. Due Process [10] Due process protections bar state action that deprives a person of life, liberty, or

property without a fair proceeding. In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014).

Due process protections at all stages of CHINS proceedings are “vital” because

every CHINS proceeding has the potential to interfere with the rights of parents

in the upbringing of their children. Id. Therefore, both CHINS proceedings

and termination of parental rights proceedings “are deeply and obviously

intertwined to the extent that an error in the former may flow into and infect

the latter . . . .” Id. In determining whether a due process violation occurred in

a CHINS proceeding, we balance the three factors laid out in Mathews v.

Eldridge, 424 U.S. 319 (1976): “(1) the private interests affected by the

proceeding; (2) the risk of error created by the State’s chosen procedure; and (3)

the countervailing governmental interest supporting use of the challenged

procedure.” Id. at 1165-66 (citations omitted). Ultimately, the resulting

balance of these factors must provide parents in a CHINS proceeding “the

opportunity to be heard at a meaningful time and in a meaningful manner.” Id.

at 1166 (quoting Mathews, 424 U.S. at 333).

Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 7 of 11

II. Drug Screens [11] Father argues he was deprived of due process when the juvenile court

considered the results of the drug screens in adjudicating K.S. a CHINS.

Specifically, Father claims the juvenile court did so after stating it would not

consider those results and without giving Father a meaningful opportunity to

contest the results.3 We agree. [12] Consistent with Mathews, we first acknowledge Father’s rights as a parent are

clearly affected by the juvenile court’s adjudication of K.S. as a CHINS and her

continued placement in foster care. See In re G.P., 4 N.E.3d at 1165 (“[E]very

CHINS proceeding has the potential to interfere with the rights of parents in the

upbringing of their children.”) (citation and internal quotation marks omitted).

In addition, the State has a compelling interest in protecting the welfare of the

children. In the Matter of E.M., 581 N.E.2d 948, 952 (Ind. Ct. App. 1991), trans.

denied. [13] As to the risk of error, we note a parent must be permitted to view the evidence

used to support the adjudication of his or her child as a CHINS and must be

given an opportunity to respond to that evidence. In re Termination of Parent-

Child Relationship of S.F., 883 N.E.2d 830, 836 (Ind. Ct. App. 2008); see also Ind.

Code § 31-32-2-3(b) (entitling parents in CHINS proceedings to cross-examine

3 The State argues Father has waived his claims for failure to present a cogent argument pursuant to Indiana Appellate Rule 46(A)(8). We disagree and address the merits of Father’s claims.

Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 8 of 11

witnesses, obtain evidence by compulsory process, and introduce evidence).

Here, we take issue with the juvenile court’s procedure, not an improper action

by the State. The juvenile court specifically stated it would not consider the

results of the drug screens unless the parties stipulated to the admission of such

evidence or a representative of the testing agency testified, neither of which

occurred. Despite this, the juvenile court still considered the results of the drug

screens in adjudicating K.S. a CHINS. We therefore conclude the juvenile

court deprived Father of the opportunity to cross-examine Bault in regard to the

drug screens or to offer his own evidence contradicting the results of the drug

screens. [14] The State argues the juvenile court’s error was harmless because Father’s own

testimony establishes the children tested positive for THC. We disagree. The

State specifically asked Father whether he had knowledge of how the children

tested positive for drugs, despite there being no evidence at that point in the

proceeding showing the children had tested positive for drugs. Father

acknowledged he knew how the children tested positive, claiming Mother had

touched the samples and contaminated the cotton swabs. In addition, Father

never acknowledged what drug the children may have tested positive for.

Therefore, Father only stated he knew how the children tested positive for drugs

and there is no evidence in the record showing the children did, in fact, test

Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 9 of 11

positive for marijuana.4 As a result, we are not persuaded the juvenile court’s

error is harmless. [15] In sum, the juvenile court explicitly stated it would not rely on the results of the

drug screens and denied Father a meaningful opportunity to contest the results.

We conclude Father was deprived of due process when the juvenile court then

considered the results of the drug screens in adjudicating K.S. a CHINS.

III. Contested Fact-Finding Hearing [16] Father also argues he was deprived of due process when the juvenile court

allegedly denied his right to a contested fact-finding hearing in regard to the

Twins. Specifically, he contends he acted in a custodial capacity with regard to

the Twins and therefore he was entitled to a fact-finding hearing as to the

Twins. Father’s argument fails. It is clear from the record DCS filed separate

petitions under separate cause numbers alleging the Twins and K.S. were

CHINS and adjudicated the Twins as CHINS following a separate fact-finding

hearing. Father now only appeals the juvenile court’s adjudication of K.S. as a

4 The State further contends evidence of the drug screen results is part of the record because the juvenile court incorporated the records from the Twins’ fact-finding hearing, which Father did not object to and failed to include as a part of this record. It is not clear the juvenile court incorporated any evidence pertaining to the drug screens because the court only incorporated the records for the purpose of showing Mother’s admission. Therefore, Father only failed to object to the incorporation of Mother’s admission. However, even assuming Father has waived this claim, we conclude the juvenile court’s error amounts to fundamental error. “In order for this court to reverse based on fundamental error, the error must have been a clearly blatant violation of basic and elementary principles, and the harm or potential for harm therefrom must be substantial and appear clearly and prospectively.” In re Involuntary Termination of Parent–Child Relationship of B.R., 875 N.E.2d 369, 375 (Ind. Ct. App. 2007), trans. denied. Here, not only did the juvenile court consider the results of the drug screens after specifically stating it would not, it did so without giving Father the opportunity to respond. We conclude this is fundamental error.

Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 10 of 11

CHINS. Therefore, we have nothing in the record to guide us in addressing

Father’s argument with respect to the Twins’ CHINS proceeding and his

argument would be best addressed in a direct appeal of the juvenile court’s

order adjudicating the Twins as CHINS.

Conclusion [17] The juvenile court considered the results of drug screens not admitted into

evidence after specifically stating it would not consider such evidence. This

procedure denied Father a meaningful opportunity to respond to the allegation

K.S. tested positive for THC, and thereby denied him due process.

Accordingly, we reverse the juvenile court’s adjudication and remand this cause

for a new fact-finding hearing. [18] Reversed and remanded.

Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016 Page 11 of 11