MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 28 2020, 5:34 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Danielle Sheff Curtis T. Hill, Jr.
Sheff Law Office Attorney General of Indiana
Indianapolis, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of J.C. and J.M. January 28, 2020
(Children Alleged to be in Need Court of Appeals Case No.
of Services) and M.M. (Mother); 19A-JC-1243
M.M. (Mother), Appeal from the Marion Superior
Court
Appellant-Respondent,
The Honorable Marilyn Moores,
v. Judge
The Honorable Gael Deppart,
The Indiana Department of Magistrate
Child Services, Trial Court Cause No.
49D09-1811-JC-2881
Appellee-Petitioner
49D09-1811-JC-2883
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1243 | January 28, 2020 Page 1 of 17
[1] M.M. (“Mother”) appeals an order that adjudicated J.C. and J.M. as Children
in Need of Services (“CHINS”) and that denied the CHINS petition as to N.H.
because custody of N.H. had been transferred to N.H.’s father, M.H. Mother
presents multiple issues for our consideration which we restate as:
1. Whether the trial court violated Mother’s right to due process
when:
A. the court consolidated the CHINS proceedings and the
custody proceedings regarding N.H., because that
consolidation prohibited Mother from being able to timely
appeal the trial court’s decision regarding N.H.’s custody,
and
B. the court did not allow the attorney appointed to
represent Mother in the CHINS proceedings to also
represent Mother in the contested custody proceedings
involving N.H.;
2. Whether the trial court abused its discretion when it allowed a
witness to testify in violation of a witness-separation order; and
3. Whether the trial court’s findings support its conclusion that
J.C. and J.M. are CHINS.
We affirm.
Facts and Procedural History
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[2] Mother is the biological mother of J.C., born April 15, 2005; 1 N.H., born
August 12, 2009; 2 and J.M., born February 25, 2014 3 (collectively, “Children”).
On November 27, 2018, Mother drove with Children for twenty-four hours
from Florida to Indiana to seek medical attention for J.M. When she arrived at
St. Francis Hospital with N.H. and J.M., 4 Mother asked emergency personnel
to examine J.M. because J.M. had allegedly sustained a skull fracture in a
recent car accident and, as Mother explained at the hearing, she was “trying to
explain that the veins popping out of her head, like she had more veins, visible
veins. And I was actually scared because of the high altitudes in the
mountains[.]” (Tr. Vol. II at 57-8.) Hospital personnel reported Mother told
them she thought that her “children’s brains had been hacked.” (Id. at 78.)
Hospital personnel placed Mother is a secured room in the hospital’s mental
health ward, would not allow her to leave, and called the Department of Child
Services (“DCS”) because J.M. and N.H. did not have care.
[3] Family Case Manager Chantel White (“FCM White”) attempted to speak with
Mother, who stated FCM White would “need to bring the President or talk to
the FBI.” (Id. at 113.) Mother asked FCM White if she “saw [C]hildren’s
brains coming out of their heads.” (Id.) FCM White reported, “[Mother]
1
J.C.’s father is deceased.
2
N.H.’s father, M.H., does not participate in this appeal.
3
J.M.’s father is incarcerated and does not participate in this appeal.
4
Mother reported she left J.C. with his paternal aunt in Indianapolis, at J.C.’s request, before going to the
hospital.
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appeared to be speaking very fast, there . . . she seemed to be crying, she
seemed very disheveled.” (Id. at 114.) Mother was detained on an involuntary
psychiatric hold for ten days at St. Francis, and then she was transferred to
Valle Vista, a psychiatric facility, for further treatment. DCS filed its petitions
to adjudicate Children as CHINS on November 29, 2018. Children did not
have care, so DCS placed them with relatives – J.C. went to live with his
paternal aunt, J.G.; N.H. went to live with her father, M.H.; and J.M. went to
live with her maternal uncle.
[4] On December 18, 2018, the trial court held an initial hearing at which Mother
and M.H. appeared. M.H. had indicated prior to the initial hearing that he
intended to seek a custody modification, so that he would have physical
custody of N.H. The trial court told the parties that the “Family Court Project
has approved or bundled, consolidated the JC [CHINS] cause along with the JP
[custody of N.H.] case.” (Tr. Vol. II at 4.) M.H.’s counsel informed the court,
“DCS is otherwise willing to dismiss [the CHINS petition] as to [N.H.] if
placement and custody were to be with [M.H.].” (Id. at 7.)
[5] Mother did not want M.H. to have physical custody of N.H. Regarding her
representation in the custody matter, the trial court and Mother discussed the
matter on the same day:
[Mother]: I have a question. So this is . . . this is going to be
for a separate case in the Marion County Courts as far as
custody, is that what we’re saying, is that what that’s going to be,
because for something like that I would definitely need to hire
my own attorney, I would assume.
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[Court]: That’s up . . . that’s up to you whether you hire an
attorney for it or not. I know Ms. Benson [Mother’s appointed
counsel] or any attorney from [the] public defender agency is
unable to represent a parent in a custody matter that’s here in this
Court or even downtown, as far as I know. But, all that to say,
Mr. Olson [M.H.’s private counsel] has been requested . . . has
requested that we set this petition for modification of custody for
a parties [sic] pre-trial in about 30-days. That would give you
enough time in terms of contacting an attorney and also if you do
not hire an attorney, to talk to Mr. Olson in terms of what you
and he may be thinking about. . . .
(Id. at 9.) The trial court then set a mediation for the parties regarding the
custody for February 3, 2019, and a bifurcated hearing on February 26, 2019, to
address the CHINS petitions and N.H.’s custody.
[6] On February 26, 2019, Mother requested a continuance of the custody matter
because she had traveled to Florida for work, had returned to Indiana on the
Friday before the hearing, and had been unable to hire private counsel because
of a lack of funds. The trial court denied the continuance and accepted
evidence regarding the CHINS petitions. At the end of the CHINS hearing, the
trial court indicated it would hold the change of custody hearing, during which
Mother would proceed pro se.
[7] On April 2, 2019, the trial court adjudicated J.C. and J.M. as CHINS. In the
same order, the court indicated N.H. was not adjudicated a CHINS because
“[M.H.] is a fit and willing parent in whose care [N.H.] has been placed, by
DCS and subsequently by court order, since on or about 11/28/18, and in
whose care [N.H.] is thriving.” (App. Vol. II at 146.) On April 30, 2019, the
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trial court entered its dispositional orders as to Mother and ordered her to
participate in services in the CHINS cases for J.C. and J.M.
Discussion and Decision
1. Due Process
[8] 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). A
due process analysis in a CHINS adjudication turns on the balancing of three
factors: “(1) the private interests affected by the proceeding; (2) the risk of error
created by the States chosen procedure; and (3) the countervailing
governmental interest supporting use of the challenged procedure.” In re K.D.,
962 N.E.2d 1249, 1257 (Ind. 2012). Mother argues the trial court denied her
due process when it did not permit the attorney court-appointed for the CHINS
proceedings to also represent Mother in the custody proceedings regarding
N.H. Mother also argues her due process rights were violated when she
allegedly was unable to appeal the modification of N.H.’s custody to her father,
M.H.
A. Appeal of Custody Modification Decision
[9] Mother argues her due process rights were violated because the consolidation of
the proceedings “forclos[ed] appellate review of the decision to modify custody
by finding that NH was not a CHINS and proceeding to the Dispositional
Hearing and Decree only as to JC and JM.” (Br. of Appellant at 44) (errors in
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original). Mother has not indicated that she attempted to file an appeal of the
custody modification decision, nor has she argued on appeal that legal
precedent prevented her from doing so. As she has not made a cogent
argument on this issue, it is waived. See Martin v. Hunt, 130 N.E.3d 135, 137
(Ind. Ct. App. 2019) (failure to make a cogent argument, without citation to
legal precedent, results in waiver of the issue for appellate review).
B. Appointed Attorney for Custody Modification
[10] Mother also argues
MH hired private counsel who filed for Modification of Custody
in the paternity action requiring that the paternity-custody matter
be joined in the CHINS court which was vested with exclusive
jurisdiction of the custody issues. Instead of allowing appointed
counsel in the CHINS matter to represent MM on [sic] the
custody matter as to NH, the Juvenile Court misconstrued the
core nature of the intertwined CHINS and custody proceedings
to bifurcate the proceedings, require MM to hire private counsel,
and then hold a hearing where appointed counsel was barred
while MM attempted to represent herself at a hearing whereat
MH was represented by private counsel with regard to NH’s
custody.
(Br. of Appellant at 42.) Mother has not cited any precedent to support her
argument that the trial court should have appointed counsel to represent her
during the custody modification hearing regarding N.H., and thus the issue is
waived. See Martin, 130 N.E.3d at 137 (failure to make a cogent argument
results in waiver of the issue for appellate review).
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[11] Additionally, even had Mother cited precedent to support her argument, she
failed to provide a transcript of the hearing for which she claims the court
should have given her counsel. This failure to provide the record renders us
incapable of reviewing this issue. See Williams v. State, 690 N.E.2d 162, 176
(Ind. 1997) (it is the appellant’s responsibility to “provide a record which
reflects the error alleged”).
[12] Finally, even if the trial court erred when it did not appoint counsel to represent
Mother during the proceedings to modify N.H.’s custody to M.H., it is unlikely
the presence of counsel could have changed the trial court’s ruling in the
custody proceedings. The record indicates N.H. had been living with her
biological father for at least four months and she was thriving in his care.
Furthermore, if custody of N.H. were not modified to her father, then she
would remain in Mother’s custody, from which she would immediately be
removed and placed in foster care pursuant to the CHINS proceedings. Given
these facts and our “strong presumption that the child’s best interests are
ordinarily served by placement in the custody of a natural parent[,]” In re
Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002), it is unlikely Mother
could demonstrate more than harmless error. See Indiana Appellate Rule 66(A)
(Explaining no trial court error “is ground for granting relief or reversal on
appeal where its probable impact, in light of all the evidence in the case, is
sufficiently minor so as not to affect the substantial rights of the parties.”).
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2. Separation of Witnesses
[13] “The purpose of a separation of witnesses order is to prevent witnesses from
gaining knowledge from testimony of other witnesses and adjusting their
testimony accordingly.” Childs v. State, 761 N.E.2d 892, 895 (Ind. Ct. App.
2002). Once the trial court grants a party’s request for separation of witnesses,
any violation of that order is left to the sound discretion of the trial court, and
we will not disturb the trial court’s decision unless there exists an abuse of that
discretion. Id. at 894. An abuse of discretion occurs when “the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court, or where the trial court has misinterpreted the law.” Id.
[14] During the CHINS fact-finding hearing, Mother asked the trial court to order a
separation of witnesses. Mother noted that N.H.’s paternal grandmother and
J.C.’s paternal aunt, J.G., were in the courtroom and would be testifying at
some point. The trial court then stated, “[N.H.’s paternal grandmother], you’ll
need to step outside, please.” (Tr. Vol. II at 26.) It is unclear from the record
whether paternal aunt also left the courtroom, but later in the proceedings,
during M.H.’s testimony, Mother notified the court about J.G.’s presence:
[Mother]: And Judge, I’m . . . I’m sorry to interrupt but I just
realized that there’s a proposed DCS witness sitting in here and I
had asked for a separation of witnesses. So I move to . . . I . . . I
don’t want her to be able to testify given the fact that she’s been
able to observe. And I apologize for not noticing, it’s just when I
walked in . . . it’s my fault for not looking but I just happened to
look over my shoulder and saw someone there.
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(Id. at 49.) DCS replied that J.G.’s testimony would not “at all be tainted by
what’s [sic] she’s hearing thus far and I think that it . . . it would just prejudice
the case to not allow her to testify.” (Id.) Based thereon, the trial court asked
J.G. to leave the courtroom.
[15] Mother also objected when DCS called J.G. as a witness, arguing that she
violated the separation of witnesses order when she “came back knowing that
the Court had ordered her not to be here[.]” (Id. at 97.) DCS replied that all
the testimony prior to J.G. had “primarily been [in] regards to [N.H.] and
[M.H.]” and thus J.G. would not be biased by the earlier testimony. (Id.) The
trial court overruled Mother’s objection and allowed J.G. to testify.
[16] On appeal, Mother does not indicate how the trial court’s decision to allow J.G.
to testify after J.G. was in the courtroom in violation of the separation of
witnesses order was an abuse of the trial court’s discretion. We conclude the
trial court did not abuse its discretion when it allowed J.G. to testify because
J.G.’s testimony primarily involved J.C., not N.H., who was the subject of the
testimony prior to J.G.’s testimony, and thus J.G.’s presence in the courtroom
during the testimony regarding N.H. was unlikely to have prejudiced J.G.’s
testimony regarding J.C. See Roser v. Silvers, 698 N.E.2d 860, 865 (Ind. Ct. App.
1998) (“In the absence of connivance or collusion by the party calling the
witness, the trial court may permit the testimony of a witness in violation of a
separation order.”).
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[17] After J.G.’s testimony, DCS called FCM White as a witness. Mother objected
because FCM White was present for earlier testimony of Mother, M.H., and
J.G. DCS argued FCM White was an “[a]gent representative” and thus not
subject to the separation of witnesses order. (Tr. Vol. II at 111.) The trial court
overruled Mother’s objection. Mother argues the trial court abused its
discretion when it allowed FCM White to testify.
[18] Indiana Evidence Rule 615, which governs the separation of witnesses during a
hearing, does not allow the exclusion of “an officer or employee of a party . . .
after being designated as the party’s representative by its attorney.” Ind. Evid.
R. 615(b). During the hearing, Mother acknowledged that FCM White was
DCS’s agent representative. Therefore, the trial court did not abuse its
discretion when it allowed FCM White to testify because FCM White could not
be excluded by the separation of witnesses order. See Fourthman v. State, 658
N.E.2d 88, 91 (Ind. Ct. App. 1995) (investigating officer was permitted to
remain in the courtroom under the exception set forth in Indiana Evidence Rule
615(b)), trans. denied.
3. CHINS Adjudication of J.C. and J.M.
[19] 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). Indiana Code section 31-34-1-1 states:
A child is a child in need of services if before the child becomes
eighteen (18) years of age:
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(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
(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.
[20] When a juvenile court enters findings of fact and conclusions thereon in a
CHINS decision, we apply a two-tiered review. Parmeter v. Cass Cty. 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 we do not
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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 to conclusions thereon. Id.
Mother does not challenge the trial court’s findings of fact, and thus they stand
as proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because
Madlem does not challenge the findings of the trial court, they must be accepted
as correct.”).
[21] Mother argues the trial court erred when it adjudicated J.C. and J.M. as
CHINS because the incident relied upon by the trial court was “outdated” and
“acute.” (Br. of Appellant at 48-9.) To support its CHINS petition, DCS
alleged Mother drove with J.C., J.M., and N.H. for twenty-four hours from
Florida to Indiana to seek medical treatment for J.M. Mother “presented at St.
Francis Hospital stating ‘her children are being brain hacked’ and ‘her
children’s brains were coming out of their heads.’” (App. Vol. II at 143.) J.C.
reported to DCS that Mother “talked to herself saying things like, ‘get out of my
head, and quit talking to me’ . . . [and] she would also tell [the children] that
they had horns coming out of their heads.” (Id.) Emergency personnel at St.
Francis examined the children, placed Mother on a ten-day psychiatric hold,
and then transferred Mother to the Valle Vista treatment center, leaving the
children without care. Children were placed with various relatives.
[22] In the time between the children’s removal and the fact-finding hearing, Mother
testified she has started a new medication for her mental illness but had yet to
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engage in therapy. Regarding Mother’s actions in the intervening time, the trial
court found:
44. Between 2/4/19 and 2/23/19, [Mother] went to Florida to
work for her father. She did not participate in services during
this period, but maintained phone contact with her children.
45. [Mother] saw the DCS service provider and therapist Jeremy
five (5) times prior to her trip to Florida [from] 2/4/10 [sic] [to]
2/23/19, and she states she has no [sic] missed any appointment
[sic] with him except during the three (3) weeks between 2/4/19
and 2/23/19.
46. [Mother] says her family doctor has complete and utter
control and is always looking and evaluating if [Mother] needs a
therapist, but currently her doctor is okay with [her] taking the
medicine [she’s] taking and not working with a therapist except
through DCS.
47. The only therapist [Mother] has seen in the last year is either
because DCS required her to do so, or because she was detained
involuntarily for a psychiatric evaluation at St. Francis and
transported for [an] involuntary stay at Valle Vista.
48. [Mother] does not think it [is] important to see a therapist to
address ongoing mental health issues [stating]: [“]Ive [sic] not
gone because my doctor said the Zyprexa was working, they
watched me there, and I was okay to go with the therapy I had
done there, and my doctor cleared me, so I believe no.[”]
49. Regarding working with the DCS service provider and
therapist, [Mother] states[:] [“]I’m not in any type of needs
[sic].[”]
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(Id. at 145-6.)
[23] While the trial court noted the reason for DCS’s initial intervention, that is,
Mother’s drive from Florida to Indiana to have her children treated at St.
Francis hospital, it also made findings regarding Mother’s behavior at the fact-
finding hearing and in the time between the children’s removal and the hearing,
and regarding Mother’s willingness to participate in services. The trial court’s
findings cited supra and others in the order support the trial court’s conclusion:
Court finds that DCS has met its burden by a preponderance of
evidence that [J.C.], and [J.M.], are children in need of services
on the basis that those childrens [sic] 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 food, clothing,
shelter, medical care, education, or supervision; and the child
needs care, treatment, or rehabilitation that the child is not
receiving; and is unlikely to be provided or accepted without the
coercive intervention of the Court. Thirteen year-old [J.C.] has
been the subject child of four (4) CHINS cases since he was 8,
where [Mother] participated in and/or completed services to
address domestic violence, substance usage, and mental health
issues. Four year-old [J.M.] has been the subject child of three
(3) CHINS cases since she was one year-old, where [Mother]
participated in and/or completed services to address domestic
violence, substance usage, and mental health issues. This most
recent CHINS case begins with the children taken to a hospital
by [Mother] upon the basis that [Mother] observed her child’s
brains coming out of their heads. [Mother] thinks she does not
need services to include therapy, notwithstanding this current
CHINS is the fourth CHINS involving her and her children in
five (5) years, certainly not for herself, and questionably for her
children.
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[Mother’s] participation in and/or completion of court-ordered
services, whether in prior cases or at the time of fact-finding has
not resolved the need for these children to receive necessary
supervision by a parent who is mentally healthy.
(Id. at 146-7.) Based thereon, we conclude the trial court did not err when it
adjudicated J.M. and J.C. as CHINS. Contra Matter of E.K., 83 N.E.3d 1256,
1262 (Ind. Ct. App. 2017) (reversing CHINS adjudication because DCS did not
prove coercive intervention of the court was necessary when parents had made
great strides in addressing the issues that resulted in CHINS investigation,
retained custody of their children, and were actively participating in treatment),
trans. denied.
Conclusion
[24] Mother has waived her due process arguments regarding her alleged inability to
appeal the custody modification and the trial court’s denial of appointed
counsel for the custody portion of the proceedings. Additionally, we hold the
trial court did not abuse its discretion when it allowed J.G. and FCM White to
testify; Mother did not indicate how the trial court abused its discretion when it
allowed J.G. to testify in violation of the separation of witnesses order, and
FCM White was exempt from the separation of witnesses order by virtue of the
fact that she was DCS’s agent representative. Finally, the trial court did not err
when it adjudicated J.C. and J.M. as CHINS. Accordingly, we affirm.
[25] Affirmed.
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Najam, J., and Bailey, J., concur.
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In the Matter of J.C. and J.M. (Children Alleged to be in Need of Services) and M.M. (Mother) M.M. (Mother) v. The Indiana Department of Child Services (mem. dec.)
Combined Opinion