FILED
MEMORANDUM DECISION
Apr 28 2016, 7:44 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
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 APPELLANTS ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Brooklyn , Indiana Attorney General of Indiana
Mark Small Robert J. Henke
Indianapolis, Indiana Deputy Attorney General
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
W.W. and A.V., April 28, 2016
Appellants-Defendants, Court of Appeals Case No.
52A02-1510-JC-1778
v. Appeal from the Miami Circuit
Court
Indiana Department of Child The Honorable Timothy P. Spahr,
Services, Judge
Appellee-Plaintiff. Trial Court Cause No.
52C01-1502-JC-5
Altice, Judge.
Case Summary
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[1] W.W. (Mother) and A.V. (Father) (collectively, Parents) appeal the trial court’s
determination that their daughter, S.V. (Child), is a Child in Need of Services
(CHINS). Parents argue that the evidence was insufficient to support the
CHINS adjudication.
[2] We affirm.
Facts & Procedural History
[3] During the early morning hours of February 13, 2015, police executed a search
warrant at Parents’ home and discovered evidence of a recently active
methamphetamine lab in the basement. Five people were present in the home,
including Mother, Father, and Child. Upon entering the home, officers
encountered thick smoke and chemical fumes so strong that the house had to be
evacuated. As a result of their exposure to the fumes, Child and three of the
responding officers had to be treated at a local hospital. Hair follicle testing
indicated that Mother, Father, and Child had all ingested methamphetamine.
[4] As a result of these events, the Department of Child Services (DCS) removed
Child from Parents’ care and filed a CHINS petition. Following a fact-finding
hearing, the trial court entered its order adjudicating Child a CHINS. The trial
court entered its dispositional decree on October 6, 2015, and Parents now
appeal.
Discussion & Decision
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[5] Where, as here, a juvenile court enters findings of fact and conclusions of law in
support of its CHINS determination, we apply a two-tiered standard of review.
Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 N.E.2d 444, 450 (Ind. Ct. App.
2007). First, we consider whether the evidence supports the findings, and
second, whether the findings support the judgment. Id. We will 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. While we defer to the juvenile court’s findings of
fact, we do not do so as to its conclusions of law. Id. Additionally, we will not
reweigh the evidence; rather, we consider the evidence favorable to the
judgment and draw all reasonable inferences in favor of the judgment. Id.
[6] “Because a CHINS proceeding is a civil action, the State 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). In reviewing the
sufficiency of the evidence supporting a CHINS determination, we consider
only the evidence most favorable to the judgment and the reasonable inferences
flowing therefrom.1 In re J.L., 919 N.E.2d 561, 563 (Ind. Ct. App. 2009).
1
Father briefly argues that our standard of review is de novo, apparently contending that the issue presented is
one of personal jurisdiction. This argument is waived, both because Father did not raise it below and
because he does not develop his argument or cite authority supporting it. See Ind. Appellate Rule 46(A)(8)(a)
(requiring each contention be supported by cogent reasoning and citations); A.D.S. v. Ind. Dep’t of Child Servs.,
987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013) (failure to support arguments with cogent reasoning results
in waiver on appeal), trans. denied; Vance v. State, 949 N.E.2d 1269, 1271 (Ind. Ct. App. 2011) (noting that
failure to make a timely objection results in waiver of arguments based on a lack of personal jurisdiction).
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[7] To support a CHINS adjudication, DCS must prove three elements by a
preponderance of the evidence: (1) that the child is under eighteen years of age,
(2) one of eleven different statutory circumstances exist that would make the
child a CHINS, and (3) that the child needs care, treatment, or rehabilitation
that he or she is not receiving and is unlikely to be provided or accepted without
the coercive intervention of the court. In re K.D., 962 N.E.2d 1249, 1253 (Ind.
2012). Neither Mother nor Father challenge the trial court’s findings with
respect to the second and third elements. The sole issue presented on appeal is
whether DCS established that Child was under eighteen years of age. Although
Mother and Father have filed separate briefs, their arguments are essentially the
same. They note that the trial court found that Child was twelve years old, but
contend that no testimony or exhibits were presented at the fact-finding hearing
to establish Child’s age or date of birth.
[8] We note that the Chronological Case Summary (CCS) lists Child’s date of birth
as December 27, 2002. Additionally, the CASA filed a letter Child had written
to the trial court. The attached cover sheet lists Child’s date of birth as
December 27, 2002, and in the letter, Child states that she is twelve years old.2
Waiver notwithstanding, there is no question that the trial court had both subject matter and personal
jurisdiction over this case. See K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006) (explaining that “[s]ubject
matter jurisdiction is the power to hear and determine cases of the general class to which any particular
proceeding belongs” and personal jurisdiction requires that the parties be appropriately served).
2
In her reply brief (in which she has cited no authority whatsoever), Mother argues that it was improper for
the trial court to consider these documents because they “were never offered as exhibits or otherwise entered
into evidence.” Mother’s Reply Brief at 5. In response to the State’s contention that the trial court presumably
took judicial notice of its own files, see Ind. Evidence Rule 201 (providing, in relevant part, that a court may
sua sponte take judicial notice of the records of a court of this state), Mother makes the conclusory assertion
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Moreover, multiple witnesses at the fact-finding hearing referred to Child as a
“child” or “juvenile.” Even Mother and Father referred to Child as “child” and
“minor child[]” in various motions. Mother’s Appendix at 38, 59, 60. Finally,
because Child was present in the courtroom, the trial court was able to
conclude based on its own observations that Child was under eighteen years
old. Based on the foregoing, we conclude that the trial court’s finding that
Child was under eighteen years of age was supported by the evidence.
[9] Judgment affirmed.
[10] Bailey, J. and Bradford, J., concur.
that “it did not.” Mother’s Reply Brief at 5. Mother’s argument in this regard is undeveloped and
unpersuasive. We note further that Mother did not raise any objection below to the CASA’s filing or the trial
court’s consideration thereof.
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