In the Matter of J.K., A Child in Need of Services, M.K., Father v. Marion County Department of Child Services and Child Advocates, Inc.

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Aug 06 2014, 9:50 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

RUTH JOHNSON GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
ROBERT J. HENKE
JILL M. ACKLIN CHRISTINA D. PACE
Acklin Law Office, LLC Deputy Attorneys General
Westfield, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA
In the Matter of J.K., A Child In Need of Services, )
)
M.K., Father, )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1312-JC-1008
)
MARION COUNTY DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner, )
)
and )
)
CHILD ADVOCATES, INC., )
)
Co-Appellee (GAL). )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
Cause No. 49D09-1305-JC-16154

August 6, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
 M.K. (“Father”) appeals from the juvenile court’s order adjudicating his child, J.K.,

to be a child in need of services (“CHINS”) and contends that he was denied his due process

right to a fair hearing because the juvenile court judge made alleged derogatory remarks

about the parties.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 20, 2013, the Marion County Department of Child Services (“MCDCS”)

received a report alleging neglect of J.K. The report stated that J.K. lived with her mother,

C.K. (“Mother”), at the home of J.K.’s grandmother. J.K., who was seventeen years old at

the time, worked at Steak ‘n Shake until approximately 9:00 p.m. on the evening of May

16, 2013. J.K. does not usually get home until about 10:30 to 11:30 p.m. because she has

to take two buses to get home. When J.K. arrived at Grandmother’s home at approximately

11:30 p.m., Grandmother had locked her out of the house and would not answer the door

when J.K. banged and kicked at the door. J.K. called Mother, who told J.K. that she would

have to sleep outside because Mother was not coming back to the house that night. J.K.

eventually called a friend to pick her up. J.K. stated that Grandmother did not want her at

the house unless Mother is there. On May 17, 18, and 19, J.K. spoke with Mother, who

said she would not be returning to Grandmother’s house those days, so J.K. stayed with

her friend again those nights. When her friend’s mother called Grandmother on May 20,

2013, Grandmother still refused to allow J.K. to come home. MCDCS removed J.K. and

placed her in foster care.

After speaking with Mother and Father and determining that neither was willing to

cooperate in MCDCS’s investigation, MCDCS filed a petition alleging that J.K. was a
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CHINS.1 On August 29, 2013, and October 10, 2013, the juvenile court conducted a fact-

finding hearing on the CHINS petition. At the August 29 hearing, Mother submitted her

admission of CHINS and agreement for services. At the conclusion of the October 10

hearing, Father waived his right to a fact-finding hearing, and the juvenile court issued its

order adjudicating J.K. to be a CHINS. On November 7, 2013, the dispositional hearing

was held, and Father failed to appear. The juvenile court entered its dispositional order,

granting wardship of J.K.2 to MCDCS, ordering placement of J.K. with Mother on a trial

home visit, and requiring both Mother and Father to participate in certain reunification

services. Father now appeals. Additional facts will be added as necessary.

DISCUSSION AND DECISION

Father argues that the juvenile court judge made “a number of questionable,

derogatory comments towards both parents, which call into question the fairness of the

proceedings.” Appellant’s Br. at 8. However, Father did not object during the hearings to

any of the challenged comments. The fundamental error exception permits an appellate

court to review a claim that has been waived by a defendant’s failure to raise a

contemporaneous objection. Benefield v. State, 945 N.E.2d 791, 801 (Ind. Ct. App. 2011)

(citing Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)). “The fundamental error

exception is ‘extremely narrow, and applies only when the error constitutes a blatant

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Mother admitted that J.K. was a CHINS and does not participate in this appeal. We will, therefore,
address facts as to Mother only as necessary to address Father’s arguments.
2
J.K. turned eighteen on April 2, 2014, before the date of filing of Father’s appellate brief. Father
contends that this case may, therefore, be moot. However, Indiana Code section 31-30-2-1(a)(1) states that
the juvenile court retains jurisdiction over a child adjudicated to be a CHINS and over the parents of such
child until the child becomes twenty-one, unless the court discharges the child and the child’s parents at an
earlier time. We, therefore, will reach the merits of this case.

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violation of basic principles, the harm or potential for harm is substantial, and the resulting

error denies the defendant fundamental due process.’” Id. (quoting Mathews v. State, 849

N.E.2d 578, 587 (Ind. 2006)).

Father contends that certain comments made by the juvenile court during the course

of the two-day fact-finding hearing were derogatory toward him and Mother and that such

statements called into question the fairness of the CHINS proceedings. He asserts that the

comments made by the judge “seriously call[ ]the judge’s impartiality into question, which

is a risk to [Father’s] due process right to a fair tribunal.” Appellant’s Br. at 10. Father

further argues that he waived the fact-finding hearing and admitted that J.K. was a CHINS

only after the juvenile court made one of the comments.

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. (citing S.S. v. Ind. Dep’t of Child Servs., 962 N.E.2d 1249, 1257 (Ind. 2012))

(quotations omitted). “[P]rocedural irregularities . . . in a CHINS proceeding may be of

such import that they deprive a parent of procedural due process with respect to a potential

subsequent termination of parental rights.” In re K.D., 962 N.E.2d 1249, 1258 (Ind. 2012)

(citing In re J.Q., 836 N.E.2d 961, 967 (Ind. Ct. App. 2005)). “It is also a double-edged

sword because not only must we ensure parental due process is upheld, but we also

acknowledge that ‘a primary purpose and function of the [State] is to encourage and

support the integrity and stability of an existing family environment and relationship.’” Id.

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(quoting Jackson v. Madison Cnty. Dep’t of Family & Children, 690 N.E.2d 792, 793 (Ind.

Ct. App. 1998), trans. denied).

A trial before an impartial judge is an essential element of due process. Stellwag v.

State, 854 N.E.2d 64, 65 (Ind. Ct. App. 2006) (citing Ruggieri v. State, 804 N.E.2d 859,

863 (Ind. Ct. App. 2004)). To assess whether the trial judge has crossed the barrier of

impartiality, a court on review examines both the trial judge’s actions and demeanor. Id.

at 66. However, a trial judge must be given latitude to run the courtroom and maintain

discipline and control of the trial. Id.

On rare occasions, the comments of a judge have been found to constitute

fundamental error. Id. See e.g., Kennedy v. State, 258 Ind. 211, 226-27, 280 N.E.2d 611,

620-21 (1972); Decker v. State, 515 N.E.2d 1129, 1131-32 (Ind. Ct. App. 1987). However,

not every alleged errant comment made by a trial judge will entitle a defendant to review

for fundamental error, thus avoiding the necessity for a contemporaneous objection.

Stellwag, 854 N.E.2d at 66.

In the present case, the record shows that Mother and Father were attempting to use

the juvenile court as a vehicle to determine custody issues in their dissolution proceedings.

Instead of focusing on the needs of J.K., Mother and Father were focusing on their marital

disputes and dragging J.K. into the middle. Specifically, after an exchange regarding the

fact that when J.K. is staying at Father’s he does not allow her to talk to Mother, the juvenile

court asked how it was relevant to the CHINS case and wanted to know if Father was going

to admit J.K. was a CHINS or proceed with the hearing because the juvenile court was not

the proper court to determine the dissolution proceedings. Tr. at 8-9. The juvenile court

made the following comment:
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 . . . guys this is not what this Court is for. This is not what tax payer’s services
are for. We have people who are writing their names on children with lit
cigarettes. That is what the resources of this Court are for and not because
you’re living with people she [sic], that have too much drama and you’re
living with somebody else who creates drama for her in the middle of this
and shame on grandmother for locking her out. What kind of crazy person
locks a kid out on the streets in this world, in this day and age? It’s not like
she’s out running around, she’s working for god sake. Now, this is
completely ridiculous and retarded.

Id. at 9. The juvenile court then ordered Mother and Father to mediation to attempt to

determine where J.K. should live. The juvenile court then stated: “We have crack positive

babies, we have mothers who are leaving their children where nobody knows where they

are. This is a divorce and it’s being poorly handled. Are you guys represented by attorneys

in your divorce?” Id. at 10. Before a mediation date was set, a further exchange occurred,

where Mother discussed the reason why she could not get a place of her own and how she

had not received child support for a period of time. Id. at 11-13. The court again requested

a mediation date be set and further stated:

Give me a mediation date. I’m not . . .I can’t make people behave. I can put
them in jail if they don’t, but I can’t make them behave and you guys have
baggage here that is not appropriate baggage for our Court. We have real,
genuine human problems. The only person in this courtroom who has that is
poor [J.K.] who’s caught in the middle of your guy’s mess. Now. It’s a mess
and I’m not saying . . . she didn’t pick either of you. Okay. All she did is
show up on earth and try to be a good kid and not cause any problems and
she gets pulled both ways. You have to understand that. It is not fair, it is
not right, what’s our date.

Id. at 14-15.

When read in context of what occurred at the hearing, the juvenile court’s statements

do not call into question the judge’s impartiality or constitute a violation of Father’s right

to a fair tribunal. The court was attempting to make Mother and Father understand that the

juvenile court was not a place for them to argue their dissolution case or air out their
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domestic relations issues. The court was merely trying to get Mother and Father to

recognize that the CHINS proceeding was not the place to use J.K. as a pawn in their

domestic relations issues but, instead, was a place to provide J.K. with the services that she

needed.

On the second day of the fact-finding hearing, which took place after mediation

failed to result in an agreement between Mother and Father, the juvenile court asked J.K.

to state her preference for where she wanted to be placed. After J.K. stated what she

believed would be best to keep the peace between her parents, the juvenile court stated:

“[D]o you hear the wisdom of your daughter, the seventeen year old, that neither of you

knuckles head [sic] can get this done, shame on both of you.” Tr. at 22-23. A discussion

then ensued about how J.K. would get to her present high school if she lived with Father,

with Father informing the court that he was not able to transport J.K. The juvenile court

then told MCDCS to look into whether J.K. could be transported by bus to school from

Father’s house if J.K. was placed with Father under the CHINS case. As the juvenile court

was adjudicating J.K. to be a CHINS, Father informed the court that he did not agree that

J.K. was a CHINS. Id. at 27. The following exchange then occurred:

Father’s Attorney: Your honor, before we get to [sic] far afield, um, Father
still avers that [J.K.] is not a [CHINS] based on if he has
placement that she doesn’t need services.

Court: Well, if that were the case then he’d be able to provide
her transportation to school wouldn’t he?

Father’s Attorney: Not necessarily, your honor. As you said the school
system . . .

Court: Hopefully, that’s the case.

Father’s Attorney: . . . must do that but he doesn’t believe . . .
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 Court: Well no, only if she is placed by court order. They
won’t do it if she, if he just gets custody. They want
[won’t] do it, that’s the reason I’m keeping the case
open. If I were you I’d waive fact-finding otherwise
you’re going to find your butt finding a new job. I’ll be
happy to give you what you want sir and I will order
custody to you and then you will be responsible for
ensuring that she gets to school every day. Do you want
to do that? We can play that game. They only do it for
kids in foster care and in court-ordered placements, they
don’t do it for others.

Father: That’s fine she’s . . .

Court: It’s 5:30 sir . . .

Father: . . . a [CHINS].

Id. at 27-28.

Father contends that this exchange made him waive the fact-finding hearing and

admit that J.K. was a CHINS. In the exchange, the juvenile court was attempting to inform

Father that the school system only arranges transportation from one school district to

another when MCDCS, under its parens patriae authority, arranges and the court orders it

under a CHINS case. See Ind. Code § 31-34-15-4(7)(B); Ind. Code § 31-34-20-5.

Therefore, in the present case, if there was no CHINS adjudication and involvement, no

school transportation could be obtained. Additionally, Father had told the court that he

was not able to transport J.K. to her school due to his work, which could make it necessary

for him to find a new job if he had custody of J.K. and was responsible for ensuring she

was transported to school every day or face further state involvement for failing to address

J.K.’s educational needs.

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 Although the juvenile court judge’s statements may have been blunt, they were

made to make Father aware that, even if J.K. was placed in his care, she was a CHINS

because Father was unable to transport her to school and she required services for

transportation. The statement did not indicate a bias or prejudice against Father, merely a

desire to ensure that J.K. could attend her school. The juvenile court’s statement also does

not indicate that the court made Father admit that J.K. was a CHINS. Instead, when Father

admitted that he could not provide transportation for J.K. to get her to school, this was an

implicit admission that J.K. was a CHINS and required court-ordered intervention to be

able to have the school system ordered to provide transportation to J.K.’s school. We

conclude that no fundamental error occurred in the present case.

Affirmed.

MAY, J., and BAILEY, J., concur.

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