In the Matter of: L.S., C.S., and W.S. (Minor Children in Need of Services) J.S. (Father) v. Indiana Department of Child Services

FILED
Aug 25 2017, 9:00 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Carlos I. Carrillo Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana

Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of: L.S., C.S., and August 25, 2017
W.S. (Minor Children in Need Court of Appeals Case No.
of Services); 79A02-1705-JC-1042
J.S. (Father), Appeal from the Tippecanoe
Superior Court
Appellant-Respondent,
The Honorable Faith A. Graham,
v. Judge
Trial Court Cause No.
Indiana Department of Child 79D03-1611-JC-322
Services,
Appellee-Petitioner.

Najam, Judge.

Statement of the Case
[1] J.S. (“Father”) appeals the trial court’s denial of the Department of Child

Services’ (“DCS”) petition in which DCS alleged that Father’s children, L.S.,

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 C.S., and W.S. (collectively “the Children”), are children in need of services

(“CHINS”). Father presents five issues for our review, which we consolidate

and restate as the following three issues:

1. Whether the trial court erred when it denied Father’s
requests for supervised visits with the Children.

2. Whether the trial court violated Father’s right to due
process when it conducted the CHINS fact-finding
hearing.

3. Whether the trial court clearly erred when it denied the
CHINS petition.

[2] We affirm.

Facts and Procedural History
[3] Father and S.S. (“Mother”) married and had three children together: L.S., born

October 14, 2005; C.S., born January 27, 2008; and W.S., born November 5,

2009. In 2014, after DCS received a report of Father’s “violence against

Mother,” the trial court adjudicated the Children to be CHINS. Appellant’s

App. Vol. 2 at 46. After that CHINS case was closed, the parents continued

marital counseling, and they continued counseling and medication for L.S.,

who had been diagnosed with Disruptive Mood Disregulation Disorder

(“DMDD”) and Attention Deficit Disorder (“ADD”). At some point, Mother

filed a petition for dissolution of the marriage, but she later dismissed her

petition.

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[4] Then, on October 28, 2016,

law enforcement responded to the family home after a 911 call
regarding a domestic violence incident in the presence of the
children. After initial hesitation, Mother cooperated with law
enforcement by answering questions and providing information.
DCS also conducted an investigation into the circumstances.
Mother report[ed] Father had “belted” Mother back before
grabbing and wrestling [L.S.] to the ground where Father held
her down. Mother also reported Father held her by the neck
against the wall screaming very loudly in her ear. Mother
disclosed a history of Father exhibiting controlling and
manipulative behavior but assert[ed] past incidents ha[d] not
included physical aggression to th[at] extent. Father report[ed]
[L.S.] attempted to unilaterally “hijack” a planned family trip to
Chicago. Father spank[ed] [L.S.] with a belt after [L.S.] struck
Father in the head with a suitcase.

Appellant’s App. at 77. After investigating the incident on October 28, DCS

filed a petition alleging that the Children were CHINS. And on November 15,

2016, a trial court issued a protection order that restrained Father “from any

contact” with Mother or the Children. Protection Order at 1.1

[5] The trial court held a fact-finding hearing on the CHINS petition over the

course of four days from January 12 to April 21, 2017. On April 24, the court

issued its order denying the petition, and it found and concluded in relevant

part as follows:

1
Father did not include in his appendix a copy of the protection order. We obtained a copy of the order
from Odyssey and take judicial notice of it. The order expires on November 2, 2018.

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 10. Mother filed a Petition for Dissolution of Marriage . . . on
November 15, 2016. A Provisional Order issued January 3,
2017, and modified March 29, 2017, awards Mother possession
and use of the marital residence. Matters of custody, parenting time
and support were referred to Tippecanoe Superior Court II pending the
conclusion of the CHINS proceeding.

***

12. The State of Indiana filed charges against Father for
Invasion of Privacy and a criminal case is pending . . . .

13. Mother admits she has not continued her own individual
counseling since the prior CHINS case closed. Mother has a
plan for appropriate alternative housing in the event Mother and
the [C]hildren are unable to continue residing in the marital
residence. Mother gained employment as a substitute teacher
and is renewing her teaching license for future employment.

14. Father reports residing in his van or at a homeless shelter.
Father is seeking housing assistance through Lafayette
Transitional Housing. Father’s employment was terminated.

15. Father initially admitted that [L.S.] is a Child in Need of
Services. At the conclusion of the Fact Finding hearings, Father
testified that[,] without an adjudication, Father would be unable
to gain access to the [C]hildren and Mother would be able to
succeed with a strategy for adoption.

16. Both parents indicate [L.S.] was previously diagnosed with
[DMDD and ADD] by Laura Hawkins around the Summer of
2015. Both parents indicate [L.S.] was prescribed medication
which improved [L.S.’s] behavior.

17. Father asserts Mother unilaterally ceased [L.S.’s]
medication in around February 2016 resulting in a “new peak of
violence” from [L.S.] including attacks on siblings and parents.
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 Father asserts Mother downplays the extent of [L.S.’s] behavior
and is incapable of disciplining [L.S.] and the other children.
Mother agrees medication did calm [L.S.], but worries that the
medication is for the benefit of the parents and not the benefit of
[L.S.] Mother asserts she consulted with [L.S.]’s pediatrician
before ceasing [L.S.]’s medication.

18. Judy Phillips is [L.S.]’s current therapist. Father contacted
Ms. Phillips seeking services for [L.S.] Ms. Phillips began
therapy with [L.S.] on September 22, 2015. [L.S.] has continued
in therapy with Ms. Phillips since that time approximately twice
per month. Both parents attended the initial appointment citing
concerns regarding anxiety, ADHD, and ability of [L.S.] to
manage her emotions appropriately and consistently. Mother
has routinely transported [L.S.] to therapy and participated as
requested by Ms. Phillips. Father has only attended one (1) other
appointment in February 2016, when Ms. Phillips met with the
parents to discuss [L.S.’s] progress. Both parents expressed
concern about [L.S.’s] medication and were encouraged to speak
with the medication prescriber.

19. Ms. Phillips believes [L.S.] has made progress with
decreasing anxiety and improved ability to manage emotions
consistently. Ms. Phillips reports a current diagnosis for [L.S.] as
A[d]justment Disorder, Mixed and ADD. Ms. Phillips believes
[L.S.] does not meet the criteria for DMDD. The concerns
regarding [L.S.’s] behavior are not observed in the school
environment. Mother acknowledges [L.S.’s] behavioral issues
and expresses concern over Father’s discipline methods. [L.S.]
has not expressed fear of either parent. [L.S.] has not expressed
concern about Mother’s ability to protect her. Ms. Phillips
recommends ongoing therapy for [L.S.]

20. Father is unlikely to complete evaluations or services to
address his parenting style and/or issues of domestic violence.
Mother’s attorney has advised Mother not to execute certain
releases for information as requested by DCS. The [C]hildren

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 have continued to remain in Mother’s care since the onset of this
CHINS case.

21. Although Mother did not initiate the 911 call at the time of
the October 28, 2016, incident, Mother has since demonstrated a
willingness to protect the [C]hildren from further such incidents.
There is no evidence Mother has failed to actively pursue a
dissolution of marriage and no evidence Mother has continued a
relationship with Father. Mother has reported violations of the
Order for Protection. Mother has continued counseling for [L.S.]

22. Based on the specific circumstances of this case, Court
finds that coercive intervention is not necessary. A modification
of the provisional order in the pending dissolution proceeding
combined with the existing Order for Protection and retention of
the firearms by the Sheriff allows Mother to continue providing
appropriate care and supervision for the [C]hildren.

23. Accordingly, Court issues a contemporaneous Notice of
Juvenile Court Jurisdiction and Juvenile Court Orders. Court
notes DCS submitted a Status Report on April 20, 2017,
containing recommendations from Ms. Phillips of no contact
between Father and [L.S.] until Father is able to recognize his
responsibility and accountability in the trauma [L.S.] has
suffered, Father participates in individual therapy to address the
same, and a safety plan is developed regarding such contact.

Appellant’s App. at 78-79 (emphasis added). This appeal ensued.2

2
The State has filed a notice of intent not to file an appellee’s brief. The State notes that, in light of the
negative judgment standard of review, “DCS has been unable to identify any error of law giving rise to a
meritorious argument for reversal of the trial court’s order denying DCS’ CHINS petition.” Notice of Intent
at 3.

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 Discussion and Decision
Issue One: Supervised Visitation

[6] Father first contends that the trial court erred when it denied his repeated

requests to exercise supervised visitation with the Children. We do not address

this issue, however, because it is moot. An issue becomes moot when it is no

longer live and the parties lack a legally cognizable interest in the outcome or

when no effective relief can be rendered to the parties. Ind. High Sch. Athletic

Ass’n, Inc. v. Durham, 748 N.E.2d 404, 410 (Ind. Ct. App. 2001). In addition,

when the principal questions in issue have ceased to be matters of real

controversy between the parties, the errors assigned become moot questions and

the court will not retain jurisdiction to decide them. Id.

[7] Here, during the pendency of the CHINS petition, the court referred “[m]atters

of custody, parenting time, and support” to the dissolution court. Appellant’s

App. at 77. And, now that the CHINS proceeding is closed, the dissolution

court has sole jurisdiction over parenting time issues. See Tr. Vol. 3 at 20.

Indeed, following mediation in the dissolution proceedings, Father and Mother

have agreed to weekly supervised parenting time for Father with C.S. and W.S.,

and Father will work with Judy Phillips towards attending therapy sessions

with L.S. June 28, 2017, Mediation Agreement at 1-2. To the extent Father

challenges the juvenile court’s interlocutory denials of his requests for

supervised visitation, even if we were to conclude that the court had erred we

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 could not render effective relief now.3 In sum, again, Father’s contention on

this issue is moot.

Issue Two: Due Process

[8] Father contends that the trial court violated his right to due process “when no

final fact-finding order was entered until 159 days after” DCS had filed its

CHINS petition and when the court gave him only “twelve (12) minutes to

present evidence” at the final hearing. Appellant’s Br. at 18. Due process

protections bar “state action that deprives a person of life, liberty, or property

without a fair proceeding.” J.A. v. Ind. Dep’t of Child Servs. (In re G.P.), 4 N.E.3d

1158, 1165 (Ind. 2014) (citation omitted). Due process protections are vital

during all stages of CHINS proceedings “because every CHINS proceeding has

potential to interfere with the rights of parents in the upbringing of their

children.” Id. (internal quotation marks and citation omitted). Due process

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

manner.’” S.S. v. Ind. Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1257

(Ind. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

[9] Father first maintains that, because Indiana Code Section 31-34-11-1 requires a

trial court to “complete a fact-finding hearing not more than sixty (60) days

after” a CHINS petition is filed, the trial court violated his right to due process

3
In any event, the protection order prohibited contact between Father and the Children, with no exception
for visitation.

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 when it completed the fact-finding hearing more than four months after the

CHINS petition was filed in this case. Father acknowledges that the statute

permits an extension of time “if all parties in the action consent to the

additional time,” but he states that “the record does not establish that [he] either

requested or agreed to any of the continuances or extensions.” Appellant’s Br.

at 18.

[10] Father is incorrect. The first day of the fact-finding hearing, January 12, 2017,

was held within the statutory sixty-day timeframe. At the conclusion of the

hearing on that date, the trial court discussed potential dates for the

continuation of the hearing, and Father’s counsel expressly asked the court for a

date that would accommodate a “longer” hearing. Tr. Vol. 2 at 38. Father did

not object to the March 8, 2017, hearing date. And, at the conclusion of the

March 8 hearing, Father’s counsel said that the proposed April 21, 2017,

hearing date “work[ed]” for him. Id. at 150. Finally, the trial court issued its

final order three days after the fact-finding hearing was concluded. The trial

court did not violate Father’s right to due process either in scheduling the fact-

finding hearing dates or in issuing its final order.

[11] Father also maintains that he was “only given twelve (12) minutes to present

evidence.” Appellant’s Br. at 18. In support of that contention, Father cites to

the transcript, where, on direct examination of Father, Father’s counsel said,

“you understand we have about twelve minutes left in this hearing . . . .” Tr.

Vol. 3 at 11. Father also complains that the trial court “sternly directed [him] to

‘limit’ his answers” when DCS examined him. Id. Father’s contentions on this

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 issue are entirely without merit. Over the course of three days, Father was able

to examine and cross-examine multiple witnesses. And Father testified at all

three hearings. Father has not demonstrated that he was denied his right to due

process in his efforts to “present evidence” during the fact-finding hearing.

Issue Three: Denial of CHINS Petition

[12] Finally, Father contends that the trial court’s denial of the CHINS petition is

clearly erroneous. A CHINS proceeding is a civil action; thus, “the State must

prove by a preponderance of the evidence that a child is a CHINS as defined by

the juvenile code.” In re K.D., 962 N.E.2d at 1253. We neither reweigh the

evidence nor judge the credibility of the witnesses. Id. We consider only the

evidence that supports the trial court’s decision and reasonable inferences

drawn therefrom. Id. We reverse only upon a showing that the decision of the

trial court was clearly erroneous. Id.

[13] Indiana Code Section 31-34-1-1 (“Section 1”) provides:

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:

(A) the child is not receiving; and

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

[14] And Indiana Code Section 31-34-1-2 (“Section 2”) provides in relevant part:

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 health is seriously endangered
due to injury by the act or omission of the child’s parent,
guardian, or custodian; 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.

[15] Here, DCS alleged that L.S. and C.S. were CHINS under both Section 1 and

Section 2. And DCS alleged that W.S. was a CHINS under Section 1. In

particular, DCS alleged that all three children were victims of neglect and that

L.S. and C.S. were victims of abuse. DCS alleged in its CHINS petition that

Father had physically abused Mother in the presence of the Children and that

Father had physically abused L.S. and C.S., resulting in injuries to them.

[16] Father first contends that, under Indiana Code Section 31-34-12-4, there was a

rebuttable presumption that L.S. and C.S. were CHINS. That statute provides:

A rebuttable presumption is raised that the child is a child in need
of services because of an act or omission of the child’s parent,
guardian, or custodian if the state introduces competent evidence
of probative value that:

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 (1) the child has been injured;

(2) at the time the child was injured, the parent, guardian, or
custodian:

(A) had the care, custody, or control of the child; or

(B) had legal responsibility for the care, custody, or
control of the child;

(3) the injury would not ordinarily be sustained except for the act
or omission of a parent, guardian, or custodian; and

(4) there is a reasonable probability that the injury was not
accidental.

[17] Father maintains that the trial court erred when it did not find a rebuttable

presumption that L.S. and C.S. were CHINS and, in the alternative, that

Mother did not rebut the presumption. But Father does not direct us to any

evidence4 presented at the fact-finding hearing that L.S. and C.S. had suffered

injuries as a result of an act or omission by Father or Mother. Indeed, Father

denied having caused bruising to L.S. when he struck her with a belt. Father

only directs us to evidence that a “physical altercation” occurred involving L.S.,

C.S., Father, and Mother. Tr. Vol. 2 at 208. Father has not demonstrated error

on this issue.

4
The CHINS petition is not evidence.

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[18] Father next contends that the trial court should have found the Children to be

CHINS based on his admission that they were CHINS. In support of that

contention, Father cites our Supreme Court’s opinion in N.L. v. Indiana

Department of Child Services (In re N.E.), 919 N.E.2d 102, 106 (Ind. 2010). But

nothing in In re N.E. supports Father’s contention on this issue. While Father’s

admission was evidence in support of a CHINS determination, the trial court

was not required to find the Children to be CHINS based on that admission.

[19] Finally, Father maintains that the trial court clearly erred when it denied the

CHINS petition because of the evidence of domestic violence in the home and

because Mother stopped giving L.S. her medication. In essence, Father

contends that the evidence does not support the court’s conclusion that the

coercive intervention of the court is not necessary for the Children’s care,

treatment, or rehabilitation. We cannot agree.

[20] Father is correct that domestic violence can support a CHINS determination.

See In re N.E., 919 N.E.2d at 106. But it is well settled that a CHINS

adjudication “may not be based solely on conditions that no longer exist” and

that the court should “consider the [family’s] situation at the time the case is

heard by the court.”5 S.S. v. Ind. Dep’t of Child Servs. (In re R.S.), 987 N.E.2d 155,

159 (Ind. Ct. App. 2013). Here, Mother testified that, since Father had left and

5
We reject Father’s contentions that the Children are CHINS based on Mother’s prior alleged failures to
cooperate with DCS, law enforcement, and/or the trial court. In any event, Father’s citations to the record
in support of those allegations do not support his assertions.

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 she obtained the protection order, there was no more domestic violence in the

home, and Phillips corroborated that testimony.

[21] To the extent Father maintains that L.S. should be taking medication for

DMDD and that Mother discontinued the medication without first consulting

L.S.’s pediatrician, Mother testified that she “had discussions with [L.S.’s]

doctor” prior to discontinuing L.S.’s medication. Tr. Vol. 2 at 83. And, in any

event, Mother testified that Phillips “does not consider [L.S. to have] DMDD.”

Id. at 82. Phillips testified that, with consistent therapy, L.S. has shown

decreased anxiety and is now better able to “manage her emotions

appropriately.” Id. at 167.

[22] Father’s contentions amount to a request that we reweigh the evidence, which

we will not do. Mother testified that she continues to pursue dissolution of her

marriage to Father, that she obtained a protection order, and that she has no

intention of reconciling with Father. Thus, Mother presented evidence that she

has taken several measures to prevent domestic violence between Father and

Mother and to protect the Children from exposure to such violence in the

future. And while Father maintains that L.S. presents an ongoing danger to

Mother, C.S., and W.S., the evidence shows otherwise. The trial court’s denial

of the CHINS petition was not clearly erroneous.

Conclusion

[23] Father’s contention that the trial court erred when it denied his repeated

requests for supervised visitation is moot. The trial court did not deny Father’s

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 right to due process when it continued the fact-finding hearing, with Father’s

consent, until April 21, 2017. And the trial court’s denial of the CHINS

petition was not clearly erroneous.

[24] Affirmed.

Kirsch, J., and Brown, J., concur.

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