MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 17 2018, 8:13 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Danielle L. Gregory Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR CO-APPELLEE
Carey Haley Wong
Child Advocates, Inc..
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of N.J. and J.J., January 17, 2018
Children in Need of Services Court of Appeals Case No.
49A02-1707-JC-1565
M.R. (Mother),
Appeal from the Marion Superior
Appellant-Respondent, Court – Juvenile Division
v. The Honorable Marilyn Moores,
Judge
The Indiana Department of The Honorable Danielle Gaughan,
Child Services, Magistrate
Appellee-Petitioner, Trial Court Cause Nos.
49D09-1612-JC-4497
49D09-1612-JC-4498
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And
Child Advocates, Inc.,
Co-Appellee (Guardian ad Litem)
Vaidik, Chief Judge.
Case Summary
[1] M.R. (“Mother”) appeals the trial court’s finding that her sons are children in
need of services (“CHINS”) and its order requiring her to participate in home-
based therapy. Finding no error, we affirm.
Facts and Procedural History
[2] Mother and M.J. (“Father”) have two sons: N.J., born in December 2013, and
J.J., born in November 2016. On December 9, 2016, a few weeks after J.J. was
born, Mother noticed that he was acting particularly fussy and took him to the
emergency room. He was found to have a variety of injuries, including thirteen
rib fractures, a broken collar bone, four leg and arm fractures, brain bleeding,
spinal damage, and bruised lungs. It was determined that the injuries were non-
accidental, and Father eventually admitted to beating J.J. Father was arrested
and charged with felony battery and neglect of a dependent.
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[3] On December 13, the Department of Child Services (“DCS”) filed a petition
alleging that both J.J. and N.J. were CHINS. Both children were removed
from Mother and Father and placed with Mother’s mother. The fact-finding
hearing began on March 21, 2017. One of DCS’s witnesses failed to appear, so
the trial court ordered the parties to return a week later. In the meantime, the
court ordered the children returned to Mother on the condition that the children
have no contact with Father, who by then had been released on bond in his
criminal case.
[4] On the second day of the fact-finding hearing on March 28, DCS called its final
witness and then rested its case, and the attorneys delivered closing arguments.
The court took the matter under advisement and scheduled a ruling hearing for
May 2, leaving the children in Mother’s care.
[5] On April 5, the Family Case Manager (“FCM”) assigned to the case, Arealia
Williams, made an unannounced visit to Mother’s home and decided to
remove the children. In an affidavit filed the next day, FCM Williams stated
that when she knocked on the door at Mother’s home, Father answered. She
added:
At that time [Mother] was not at home but later arrived home.
[Father] has a [no-contact order] with the Criminal Courts as
well as DCS and is not allowed to have access to the children or
[Mother]. At this time DCS cannot ensure the safety of the
children if they are left in the care of their mother.
Appellant’s App. Vol. II p. 85.
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[6] On April 10, DCS moved to reopen its case in chief. Over objections by
Mother and Father, the court granted the motion and set a third day of the fact-
finding hearing for May 23. At that hearing, FCM Williams testified as follows
regarding the visit on April 5:
I initiated a pop-in at the home to check the wellbeing of the
children. When I got to the home, I knocked and stood outside
for a while. Eventually, someone answered the door. I noticed
who it was that answered the door. I recognized the guy which
was the children’s father. I asked him was [Mother] in the home,
he said hold on, then he shut the door and then somebody else
came to the door, which was later identified as [Mother’s]
brother.
Tr. pp. 120-21. Williams said that she had met and spoken with Father in
person before April 5 and that she was “sure” it was him who answered the
door at Mother’s home that day. Id. at 127. She also testified that Mother was
not present when she arrived but showed up shortly thereafter and let her in the
home, where she saw the children, Mother’s brother, and two other,
unidentified people. She said she did not see Father again after he answered the
door. Mother, on the other hand, testified that Father was not at her home on
April 5.
[7] After the hearing, the trial court issued an order in which it found the children
to be CHINS. It explained, in part:
The children’s physical or mental condition is seriously impaired
or seriously endangered as a result of the inability, refusal, or
neglect of the children’s parent, guardian, or custodian to supply
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the children with necessary food, clothing, shelter, medical care,
education, or supervision. Father inflicted horrific injuries to
[J.J.] and Mother has shown an inability to protect both children
from future and further injury. In spite of the order of this Court,
the no contact order from a criminal court, the protective order,
and the knowledge that Father had seriously injured [J.J.],
Mother still allowed Father around the children. Not only did
she allow Father around the children, she left the house. Though
there were other people present in the home, it had only been
approximately four months since Father caused severe and
extensive injuries to [J.J.]. For Mother to allow Father access to
the children demonstrates excessively poor judgment by Mother,
is a failure by her to supply the children with appropriate
supervision, and is a significant risk to the safety of the children.
Appellant’s App. Vol. II pp. 113-14. The court then held a dispositional
hearing and ordered Mother to participate in home-based therapy.
[8] Mother now appeals.1
Discussion and Decision
[9] Mother’s appeal, like the trial court’s CHINS finding, focuses on the conclusion
that Mother allowed Father to be around the children while the case was
pending, which in turn was based on FCM Williams’ testimony on the third
day of the fact-finding hearing. We begin by addressing Mother’s contention
1
Father is not involved in this appeal. A few months after the CHINS disposition, he pled guilty to felony
battery in the criminal case and was sentenced to serve three years in prison.
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that the third day of the hearing never should have happened—that the trial
court should not have agreed to reopen the hearing.
[10] Initially, Mother asserts that the trial court lacked authority to reopen the case.
She cites our Supreme Court’s statement that “[a] party should be afforded the
opportunity to reopen its case to submit evidence which could have been part of
its case in chief.” Ford v. State, 523 N.E.2d 742, 746 (Ind. 1988). She takes this
to mean that a trial court can never reopen a case to allow a party to present
evidence that could not have been part of its case in chief—that is, newly
discovered evidence. Mother does not cite any authority in support of this
proposition, and we are not aware of any. In fact, one of the other cases cited
by Mother provides authority to the contrary. See Lee v. State, 439 N.E.2d 603,
604-05 (Ind. 1982) (affirming trial court’s decision to reopen case to allow State
to present evidence that defendant, after State initially rested, tried to escape
from custody); see also Cansler v. State, 281 N.E.2d 881, 883 (Ind. 1972) (“The
trial court possessed the requisite power to re-open this case and hear this
additional witness[.]”).
[11] Mother also argues that, even if the trial court had discretion in deciding
whether to reopen the hearing, it abused that discretion. See Moss v. State, 13
N.E.3d 440, 446 (Ind. Ct. App. 2014) (“The granting of permission to reopen a
case is generally within the discretion of the trial court, and the decision will be
reviewed only to determine whether there has been an abuse of discretion.”),
trans. denied. Specifically, Mother contends that reopening the hearing served to
delay the reunification of the family. But we agree with DCS that the move
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actually had the exact opposite effect. If the trial court had done as Mother
suggests and required DCS to file “a new request for permission to file a new
Petition Alleging the Children CHINS,” Appellant’s Br. p. 37, the case would
have started essentially from scratch, and reunification would have been
delayed even further.
[12] Mother has not convinced us that the trial court erred or abused its discretion
by reopening the hearing.2
[13] Mother’s primary argument on appeal is that, even if the third day of the
hearing was properly held, DCS failed to present sufficient evidence to support
the CHINS finding. Despite this broad framing, Mother’s argument ultimately
turns on one narrow issue: whether there is evidence that supports the trial
court’s conclusion that Mother allowed Father to be with the children while the
case was pending.3 We conclude that there is.
[14] When asked to decide whether there is sufficient evidence to support a CHINS
finding, we consider only the evidence and reasonable inferences therefrom that
2
Mother also cites Indiana Code section 31-34-11-1, which provides that the fact-finding hearing in a CHINS
case “shall” be completed within 120 days of the filing of the CHINS petition (or sixty days if, unlike in this
case, the parties do not consent to an extension). Here, the fact-finding hearing was completed more than
160 days after the petition was filed. However, as Mother herself acknowledges, we have held that the
“shall” used in the statute is directory, not mandatory, given the protective purposes of the CHINS statutes.
See Parmeter v. Cass Cty. Dep’t of Child Servs., 878 N.E.2d 444, 448 (Ind. Ct. App. 2007), reh’g denied. For the
reasons already discussed, the trial court was justified in allowing the fact-finding hearing to continue beyond
the statutory deadline.
3
Mother does not argue, in the alternative, that the CHINS finding was erroneous even if it is true that she
allowed Father around the children. Implicit in this silence is an acknowledgement that, if she allowed
Father to be around the children, the CHINS finding was proper.
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are most favorable to the judgment, and we neither reweigh the evidence nor
reassess the credibility of the witnesses. In re K.D., 962 N.E.2d 1249, 1253 (Ind.
2012). In this case, while Mother testified and argued in the trial court that
Father was not actually around the children during the case—that FCM
Williams was mistaken in her belief that the man who answered the door at
Mother’s home was Father—she (correctly) does not challenge the trial court’s
credibility determination on that issue. Instead, she asserts that there is no
evidence that she willingly allowed Father to be around the children. She
maintains that “there was no evidence Mother had knowledge that when she
left the home, she was aware the Father would be in the home, that he was at
the home, or that he had been in the home prior to the children’s removal from
her home.” Appellant’s Br. p. 29. But regardless of whether Father arrived at
Mother’s home before or after she went out, the trial court’s conclusion that
Mother “allowed” him to be there is an entirely reasonable inference from the
evidence that Father was in the home and felt comfortable enough to answer
the door. The conclusion is also supported by the fact that the other people in
the home, including Mother’s own brother, did nothing to keep Father out,
which suggests that Mother did not instruct them to do so.
[15] Mother’s final argument is flawed for the same reason. She contends that the
trial court should not have ordered her to participate in home-based therapy
because she “had already successfully completed homebased therapy[.]” See id.
at 34. This assumes, of course, that the therapy had its intended impact on
Mother the first time. But the trial court clearly believed otherwise, a
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conclusion that is supported by the evidence that Mother allowed Father to be
with the children while the case was pending. Therefore, we cannot say that
the trial court erred by ordering Mother to continue home-based therapy.
[16] Affirmed.
May, J., and Altice, J., concur.
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