In the Matter of: Ja.N., M.N. & Jy.N (minor children), Children in Need of Services, and J.C. (mother) & J.N. (father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 03 2016, 7:48 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.

ATTORNEY FOR MOTHER ATTORNEYS FOR APPELLEE
Danielle L. Gregory Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
ATTORNEY FOR FATHER
Robert J. Henke
Amy Karozos James D. Boyer
Greenwood, Indiana Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of: February 3, 2016

Ja.N., M.N. & Jy.N (minor Court of Appeals Case No.
49A05-1506-JC-490
children),
Appeal from the Marion County
Children in Need of Services, Superior Court
and The Honorable Marilyn A.
Moores, Judge
J.C. (mother) & J.N. (father), The Honorable Jennifer Hubartt,
Appellants-Respondents, Magistrate;
Trial Court Cause No.
v. 49D09-1501-JC-86
49D09-1501-JC-87
The Indiana Department of 49D09-1501-JC-88
Child Services,
Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 1 of 18
 May, Judge.

[1] J.C. (Mother) and J.N. (Father) (collectively, Parents) appeal the adjudication

of their children, Ja.N., M.N., and Jy.N. (collectively, Children), as Children in

Need of Services (CHINS). Parents argue the trial court abused its discretion

when it denied Parents’ request for continuance at the fact-finding hearing and

the Department of Child Services (DCS) did not present sufficient evidence

Children were CHINS. Mother argues the trial court abused its discretion

when it required her to complete certain services. We affirm.

Facts and Procedural History
[2] Parents’ children, Ja.N., M.N., and Jy.N., were born October 16, 2012;

September 29, 2013; and January 6, 2015; respectively. Shortly after Jy.N.’s

birth, DCS received an allegation Jy.N. tested positive for methamphetamine at

birth and Mother had not participated in prenatal care. When DCS

investigated, Mother denied using drugs during her pregnancy and Father

admitted to using marijuana once a week. When she visited the family’s home

DCS Family Case Manager (FCM) Kayla Day observed the house did not have

gas utilities, the house was heated using space heaters and an open oven,

Parents had placed a baby gate in the kitchen to prevent Ja.N. and M.N. from

coming in contact with the open oven, and there was “a spoon with a burnt-like

substance and a broken lighter sitting on the table.” (Tr. at 60.)

[3] On January 12, 2015, DCS alleged Children were CHINS and the trial court

held an initial hearing and a detention hearing. The trial court placed Children

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 2 of 18
 in foster care and allowed Mother to continue breastfeeding Jy.N. The trial

court also appointed defense counsel and a Guardian ad Litem (GAL).

[4] On January 26, 2015, the trial court held a pre-trial hearing and placed Children

with their maternal great-grandmother, allowed Mother to live with Children

and maternal great-grandmother, and ordered Father to have visitation. The

visitation would be supervised by maternal great-grandparents because Father

tested positive for marijuana. FCM Dajour Crawford recommended Parents

participate in home-based counseling, random drug screens, and substance

abuse assessments. The trial court did not order these services, as Parents were

voluntarily participating in these services.

[5] The trial court held another pre-trial hearing on February 9, 2015, at which the

parties waived the sixty-day trial deadline. The trial court noted Parents’ clean

drug screens and voluntary participation in services. It ordered Children to

remain in relative care but authorized increased visitation including temporary

in-home visitation on the positive recommendations from the FCM, GAL, and

service providers. It scheduled mediation for April 14, 2015, and a fact-finding

hearing for April 27, 2015.

[6] On April 14, 2015, Children were placed with Parents because the family home

was appropriate, the electricity was on at the family home, Parents interacted

with Children well, and “Parents had cooperated in the services to the extent

that [DCS] had no safety concerns.” (Id. at 78.) However, for thirteen days

after the return of Children to Parents’ care, the FCM was unable to contact

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 3 of 18
 Parents via telephone or at the family home, and the FCM believed the

electricity had been shut off at the family home based on her observations when

she stopped by the house twice during that time.

[7] On April 27, 2015, the trial court held a fact-finding hearing. Parents did not

appear, but their counsel were present. Parents’ attorneys requested a

continuance because Parents were not present at the hearing, but the trial court

denied their requests. After DCS presented its evidence, Parents’ attorneys

requested judgments on the evidence, both of which requests were denied. The

trial court adjudicated Children as CHINS.

[8] On May 11, 2015, the trial court held a dispositional hearing that Parents

attended. Parents indicated they did not attend the fact-finding hearing because

they received a card with the incorrect time for the hearing, and they asked the

trial court to vacate the adjudications. The trial court denied Parents’ request.

Parents indicated the family was residing with paternal grandmother. FCM

Crawford testified she had visited parental grandmother’s home and it was

appropriate. The trial court ordered the continued placement of Children in

Parents’ care.

[9] DCS recommended Parents continue home-based counseling, submit to

random drug screens, and attend to Children’s medical needs. DCS also

recommended Father complete substance abuse treatment and Mother

complete substance abuse education. Mother objected to her participation in

random drug screens because she did not test positive for drugs at any time in

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 4 of 18
 the proceedings. Parents both objected to the order requiring them to attend to

Children’s medical needs, as there had been no evidence to suggest doing so

was an issue. The trial court ordered Parents to participate in a home-based

case management program, submit to random drug screens, meet all medical

and mental needs of Children, and to adhere to the Safety Plan. Father was

ordered to complete a substance abuse assessment and follow all

recommendations, and Mother was ordered to participate in substance abuse

education.

Discussion and Decision
Motion to Continue

[10] We defer to the sound discretion of the trial court regarding the decision to

grant or deny a continuance. Rowlett v. Vanderburgh Cty. Office of Family &

Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. We will

reverse the trial court’s decision only on an abuse of that discretion. Id. An

abuse of discretion “may be found in the denial of a motion for a continuance

when the moving party has shown good cause for granting the motion.” Id.

Under Trial Rule 53.5, a trial court shall grant a continuance upon motion and

“a showing of good cause established by affidavit or other evidence.”

[11] Parents argue they were denied their due process rights because the trial court

would not continue the April 27 fact-finding hearing. Due process is essentially

“the opportunity to be heard at a meaningful time and in a meaningful

manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). We recognize that,

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 5 of 18
 “although due process is not dependent on the underlying facts of the particular

case, it is nevertheless ‘flexible and calls for such procedural protections as the

particular situation demands.’” Lawson v. Marion Cnty. Office of Family &

Children, 835 N.E.2d 577, 580 (Ind. Ct. App. 2005) (quoting In re B.T., 791

N.E.2d 792, 795 (Ind. Ct. App. 2003), trans. denied).

[12] Parents were present at all pre-trial hearings. At the February 9, 2015, pre-trial

hearing, the trial court set a mediation date of April 14, 2015, and a fact-finding

hearing for April 27, 2015, at 10:30 a.m. It announced those dates orally and

also included in its order the dates and times of the mediation session and fact-

finding hearing. Parents were present at the April 14 mediation session and

were granted temporary custody of Children at that time.

[13] For thirteen days prior to the fact-finding hearing, DCS was unable to

communicate with Parents. Parents did not attend the fact-finding hearing and

not provide a reason via affidavit or evidence under TR 53.5 why the fact-

finding hearing should be continued. However, Parents’ respective counsels

were present at the fact-finding hearing. They cross-examined witnesses and

presented arguments. When Parents appeared at the May 11, 2015,

dispositional hearing, they did not indicate they would have presented

additional evidence had they attended the fact-finding hearing, nor did they

provide evidence they arrived at the hearing at the time they claim their notice

indicated.

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 6 of 18
[14] Therefore, as Parents have not demonstrated prejudice based on the trial court’s

denial of their motions for continuance, we cannot say the trial court abused its

discretion. Parents did not provide the trial court with a reason for their

absence via affidavit or evidence as required by TR 53.5. Parents were each

represented by counsel at the fact-finding hearing and their counsels were able

to cross-examine witnesses, present evidence, and present argument. We

therefore cannot say their due process rights were violated. See In re E.E., 853

N.E.2d 1037, 1044 (Ind. Ct. App. 2006) (parental due process rights not

violated when parent is represented throughout the proceedings by counsel, and

counsel attends hearing and has opportunity to cross-examine witnesses and

offer argument), trans. denied.

Sufficiency of the Evidence

[15] A CHINS proceeding is civil in nature, so DCS must prove by a preponderance

of the evidence that a child is a CHINS as defined by the juvenile code. In re

N.E., 919 N.E.2d 102, 105 (Ind. 2010). Ind. Code § 31-34-1-1 states:

Sec. 1. 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:

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 7 of 18
 (A) the child is not receiving; and

(B) is unlikely to be provided or accepted without
the coercive intervention of the court.

A CHINS adjudication “focuses on the condition of the child,” and not the

culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding

a child to be a CHINS is to provide proper services for the benefit of the child,

not to punish the parent. Id. at 106.

[16] When a juvenile court enters findings of fact and conclusions of law in a

CHINS decision, we apply a two-tiered standard of review. Parmeter v. Cass

County DCS, 878 N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first

consider whether the evidence supports the findings and then whether the

findings support the judgment. Id. We may not set aside the findings or

judgment unless they are clearly erroneous. Id. Findings are clearly erroneous

when the record contains no facts to support them either directly or by

inference, and a judgment is clearly erroneous if it relies on an incorrect legal

standard. Id. We give due regard to the juvenile court’s ability to assess

witness credibility and do not reweigh the evidence; we instead consider the

evidence most favorable to the judgment with all reasonable inferences drawn

in favor of the judgment. Id. We defer substantially to findings of fact, but not

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 8 of 18
 to conclusions of law. Id. Parents 1 challenge many of the trial court’s findings,

claiming they are not supported by the evidence.

Finding Three

[17] Mother contends DCS did not present evidence to support Finding 3, which

states, “[Jy.N.] was born on 1/6/15 and is 3 months old.” (Mother’s App. at

83.) Mother argues DCS did not prove Jy.N. was under eighteen years of age

as required by Ind. Code § 31-34-1-1. It did; during the fact-finding hearing,

FCM Crawford testified Jy.N. was four months old.

Finding Seven

[18] Father challenges Finding 7, which states, “On or about 1/13/15 [FCM Day]

was assigned a report regarding [Children].” (Id.) Father argues the date was

before January 13, 2015, as Children were removed from Parents on January 8,

2015. However, the finding is not specific as to the exact date, as it includes the

clause, “on or about[.]” (Id.) Further, the issue is of no consequence because it

does not affect the ultimate outcome of the proceedings because DCS presented

other evidence, such as Father’s drug use and the lack of utilities in the family

home, to support the CHINS adjudication. See, e.g., In re B.J., 879 N.E.2d 7, 20

1
Parents, in separate appellate briefs, challenge a number of the trial court’s findings, many of which are the
same. We address the challenged findings in the aggregate.

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 9 of 18
 (Ind. Ct. App. 2008) (erroneous finding was not grounds for reversal because

other evidence supported the trial court’s decision), trans. denied.

Finding Ten

Mother challenges Finding 10, which states, “[FCM Day] observed safety

concerns in the home on or about 1/13/15, including a burnt spoon and lighter

on a table within reach of [Children], a lack of heat/utility disconnected, and

the oven door open to provide heat to the home.” (Mother’s App. at 83.) FCM

Day testified the gas at the family home had been disconnected and Parents

were using space heaters and an open oven to heat the house. FCM Day also

testified she observed “a spoon with a burnt-like substance and a broken lighter

sitting on the table” within the reach of Children. (Tr. at 60.) We decline

Mother’s invitation for us to reweigh the evidence and judge the credibility of

witnesses, which we cannot do. See Parmeter, 878 N.E.2d at 450 (appellate

court does not reweigh evidence or judge the credibility of witnesses). Thus, we

conclude DCS presented evidence to support Finding 10.

Finding Eleven

[19] Parents challenge Finding 11, which states, “[FCM Day’s] concerns for

[Children] included lack of supervision, risk of injury, and parental substance

abuse. [FCM Day] recommended a substance abuse evaluation and home

based casemanagement [sic] services for [Parents] in January, 2015.” (Mother’s

App. at 83.) Mother argues the “finding is not supported by the evidence as a

whole” because “[FCM Day] offered no statements or facts to support her

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 10 of 18
 general concerns regarding lack of supervision or risk of injury.” (Br. of Mother

at 18.)

FCM Day testified she had safety concerns regarding Children “due to the heat,

the open oven.” (Tr. at 61.) Mother’s alternative version of the testimony and

facts is an invitation for us to reweigh the evidence and judge the credibility of

witnesses, which we cannot do. See Parmeter, 878 N.E.2d at 450 (appellate

court does not reweigh evidence or judge the credibility of witnesses). Thus, we

conclude DCS presented evidence to support Finding 11.

[20] Father argues Finding 11 is erroneous because FCM Day did not recommend a

substance abuse evaluation and home based case management in January 2015.

DCS concedes FCM Day did not “make a formal recommendation” for these

services. (Br. of Appellee at 27.) But FCM Crawford did make those

recommendations in January, 2015, so the error in the identification of the

FCM is of no consequence because DCS presented other evidence, such as

Father’s drug use and a lack of utilities in the family home, to support the

CHINS adjudication. See In re B.J., 879 N.E.2d at 20 (erroneous finding was

not grounds for reversal because there existed other sufficient evidence to

support trial court’s decision).

Finding Regarding the Status of the Family Home Prior to the Fact-Finding Hearing

[21] Mother challenges Findings 18, 20, and 25, which concern the status of the

family home prior to the fact-finding hearing:

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 11 of 18
 18. [FCM Crawford] observed the family home from the outside
on 4/22/14 [sic]. [FCM Crawford] believed there were no lights
on/lack of utilities in the home.

*****

20. [FCM Crawford] has safety concerns for [Children] at this
time as currently [Parents] have failed to communicate with her
since [Children] were returned to their care and she has not been
able to see the family home. She has safety concerns regarding
parental substance abuse and a lack of utilities in the home.

*****

25. [Homebased Services Provider Regina Johnson] has current
safety concerns for [Children]. [Johnson] visited the family
home on the morning of 4/27/14 [sic], however, no one was
home. [Johnson] believed there was a lack of utility service to
the home on this date.

(Mother’s App. at 84.) Mother does not dispute the findings regarding their

lack of communication with FCM Crawford for the thirteen days after the date

Children were returned to Parents’ care. Mother argues it was a “giant leap,”

(Br. of Mother at 19), for FCM Crawford to conclude there were not utilities in

the family home on April 22 and April 27 because “[s]he did not enter the

home, and she did not try to turn on any light switches.” (Id.)

[22] FCM Crawford testified she visited the family home on April 22 and “there was

[sic] no lights on.” (Tr. at 72.) She knew the house had electric heat and she

was concerned the utilities had been disconnected, as that had been the case in

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 12 of 18
 the past. Johnson testified she visited the family home on April 27, and

observed

there [didn’t] appear to be any electricity in their home. . . . it
looked [like] someone [had] been there but it still don’t [sic] look
like any lights in the home and there’s a note in the door,
somebody left a note and the house seemed like nobody lives in
the, nobody’s been there for a while.

(Id. at 88.) Mother’s arguments to the contrary are invitations for us to reweigh

the evidence and judge the credibility of witnesses, which we cannot do. See

Parmeter, 878 N.E.2d at 450 (appellate court does not reweigh evidence or judge

the credibility of witnesses). Thus, we conclude DCS presented evidence to

support findings 18, 20, and 25.

Finding Twenty-Two

[23] Parents challenge Finding 22, which states, “[Johnson] provided

casemanagement [sic] services to [Parents] from February, 2015 through April,

2015. [Johnson] worked more extensively with [Mother] than with [Father]

due to [Father] “no-showing” for several casemanagement [sic] appointments.”

(Mother’s App. at 84.) Mother argues the finding ignores her voluntary

participation in services prior to February 2015. Father argues while he did

miss a few appointments, Johnson worked with Mother more because Mother

was living with Children during the time of the services.

[24] The evidence indicates the trial court ordered referrals to services for Parents at

the February 9, 2015, pre-trial hearing. Johnson testified:

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 13 of 18
 Sometimes [Father] was a no show. When we went to his house
it was a couple times he had been no show. In the last, in April
he was a no show. February I didn’t meet with him but, but [sic]
at the team meeting and then he started engaging with me in
March.

(Tr. at 84.) Johnson testified she met with Father “[a]t least three times in

March.” (Id.) Parents’ arguments to the contrary are invitations for us to

reweigh the evidence and judge the credibility of witnesses, which we cannot

do. See Parmeter, 878 N.E.2d at 450 (appellate court does not reweigh evidence

or judge the credibility of witnesses). Thus, we conclude DCS presented

evidence to support Finding 22.

Finding Twenty-Six

[25] Mother argues Finding 26 is not supported by the evidence. It states,

“[Johnson] offered community based services and information to [Parents],

however, they declined to accept those services.” (Mother’s App. at 84-5.)

Johnson testified:

[Counsel]: You indicated that the family’s continuing needs
include addressing finding community resources, correct?

[Johnson]: Yes.

[Counsel]: When you were working with the family, when
you’ve been working with the family, did you talk to them about
community resources that are available to them?

[Johnson]: Yes I did.

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 14 of 18
 [Counsel]: So they do have knowledge of what is available to
them at this point, correct?

[Johnson]: They declined it.

[Counsel]: Okay. But in the future they would have the
knowledge that you’ve provided to them about where to go?

[Johnson]: Yes.

(Tr. at 84-5.) Mother’s argument is an invitation for us to reweigh the evidence

and judge the credibility of witnesses, which we cannot do. See Parmeter, 878

N.E.2d at 450 (appellate court does not reweigh evidence or judge the

credibility of witnesses). Thus, we conclude DCS presented evidence to support

Finding 26.

Additional Sufficiency Challenges

[26] Many of Parents’ arguments focus on a specific finding in isolation, and cite

case law indicating a child cannot be declared a CHINS based solely on that

finding. The challenged findings are supported by the evidence, and those

findings as a whole concerning the family’s living conditions, substance abuse,

and lack of communication support the conclusion Children are CHINS.

Further, our Indiana Supreme Court recently held the absence of any vital

finding is not in error, “because no statute requires special findings in a CHINS

fact-finding order, nor did any party move for such findings under Indiana Trial

Rule 52(A).” In re S.D., 2 N.E.3d 1283, 1288 (Ind. 2014), reh’g denied.

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 15 of 18
[27] Father argues the trial court should have granted Parents’ motions for judgment

on the evidence because DCS did not prove Children were CHINS. As we

conclude the opposite, we need not entertain this argument.

Requirements of Parental Participation Decree

[28] Ind. Code § 31-35-20-3 provides:

If the juvenile court determines that a parent, guardian, or
custodian should participate in a program of care, treatment, or
rehabilitation for the child, the court may order the parent,
guardian, or custodian to do the following:

(1) Obtain assistance in fulfilling the obligations as a parent,
guardian, or custodian.

(2) Provide specified care, treatment, or supervision for the child.

(3) Work with a person providing care, treatment, or
rehabilitation for the child.

(4) Participate in a program operated by or through the
department of correction.

The trial court “has broad discretion in determining what programs and services

in which a parent is required to participate,” but “the requirements must relate

to some behavior or circumstance that was revealed by the evidence.” In re

A.C., 905 N.E.2d 456, 464 (Ind. Ct. App. 2009).

The trial court did not abuse its discretion when it ordered Mother to participate

in substance abuse education, undergo random drug screens, and meet the

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 16 of 18
medical needs of Children as part of the parental participation plan. DCS

presented evidence Jy.N. tested positive for methamphetamine at birth. Father,

with whom Mother and Children lived, admitted to using marijuana and tested

positive for marijuana multiple times in January 2015. The GAL testified,

regarding Children’s medical appointments:

I visited with [Children] at that point in time with maternal
grandmother. Mother was in the home. We discussed some of
the, the [sic] medical needs of [Children] at that point in time
regarding medical appointments and medical concerns. At that
point [Ja.N.] was in need of a medical appointment. He has a his
eye [sic] is crossing and it’s a severe, the severity level of it [is] to
the point that the doctor definitely told [Mother] that she needed
to get in to see a specialist ASAP. And then at that point [Jy.N.]
had an appointment, follow up appointment regarding I believe
there was some, some medical needs that I actually can’t recall at
this point. However, since that point in time, [Jy.N.] went in for
his medical appointment; however, [Mother] has not, [Mother]
did not ensure that the medical appointment took place for
[Ja.N.]. There was also a First Steps appointment that was, that
was not followed up with for [Children] at that point in time.

(Tr. at 91-2.) Based on that evidence, we conclude the trial court’s orders were

related to some behavior or circumstance presented to the court. Mother’s

arguments to the contrary are invitations for us to reweigh the evidence and

judge the credibility of witnesses, which we cannot do. See Parmeter, 878

N.E.2d at 450 (appellate court does not reweigh evidence or judge the

credibility of witnesses).

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 17 of 18
 Conclusion
[29] Parents’ due process rights were not violated when the trial court denied their

motions to continue because their counsel were present at the April 27, 2015,

fact-finding hearing to offer argument and cross-examine witnesses. DCS

provided sufficient evidence to support the trial court’s findings and those

findings supported the trial court’s conclusion Children were CHINS. Finally,

the trial court did not abuse its discretion when it ordered Mother to complete

substance abuse education, to undergo random drug screens, and to attend to

Children’s medical needs. Accordingly, we affirm the adjudication of Children

as CHINS.

[30] Affirmed.

Najam, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1506-JC-490 | Febraury 3, 2016 Page 18 of 18