N.L. v. Marion County Department of Child Services

VAIDIK, Judge,

dissenting.

I respectfully disagree with the majority's conclusion that N.E. is a CHINS as to Mother only. Rather, I believe that a child is either a CHINS or is not a CHINS and that the DCS has met its burden of proving that N.E. is a CHINS. However, because I believe that the juvenile court's dispositional order falls short of the statutory requirements and therefore we do not know the court's reason for its disposition, I would remand this case for a new dispo-sitional order in accordance with Indiana Code § 31-84-19-10. Because the majority is remanding for a different purpose, I dissent.

As an initial matter, I believe that a child is either a CHINS or is not a CHINS because a CHINS determination regards *90the status of the child.4 For this reason, I believe that the act of one parent can be enough for a child to be adjudicated a CHINS. Indiana Code § 31-34-1-1 governs a CHINS determination and 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 (B) is unlikely to be provided or accepted without the coercive intervention of the court.

Here, Mother admitted that N.E. was a CHINS,5 but Father denied it. Nevertheless, Father was entitled to a hearing to contest the CHINS allegations. The basis of Father's denial was that N.E. spent the vast majority of her time with Father and Grandmother and therefore she was not exposed to the domestic violence in Mother's home that formed the basis of the CHINS petition. The final hearing was held on April 21, 2008.

At this hearing, conflicting evidence was presented regarding where N.E. spent the majority of her time. Father testified that N.E. lived three years and eight months out of her first four years with him and Grandmother. Grandmother testified that she and Father took care of N.E. ninety-five percent of the time. Mother testified that N.E. lived with her the majority of the time and that most of the time Grandmother watched N.E., it was in her day care, for which Grandmother received government funds. Evidence was also presented that paternity had been recently established in Father, that Father had a domestic violence conviction in July 2007 involving his ex-girlfriend and was currently taking anger management classes, and that Father's father, who has an unsavory background, was in and out of Father and Grandmother's home. In addition, during the hearing, Father had an outbreak during which he said "bi* * *" and then walked out of the courtroom. Tr. p. 89-90. At the conclusion of the hearing, the DCS attorney argued:

I think the evidence shows that while [N.E.] may have spent a good portion of her time with [Father], he didn't have legal custody. [N.E.] was with her mother and therefore, was exposed to the endangerment caused by the domestic violence situation with [D.P.]. I don't think anybody can tell how often she *91would've been exposed to that but she was exposed to it somewhat. And that's enough. The law says we don't have to wait until a child is bleeding before we remove them. There is endangerment in that situation. [Father], to this day, does not have legal custody. Has not taken steps. Does not seem to know how to and is not, neither he nor his mother had taken stops to get legal custody. The child therefore, fits the definition of a child in need of services, evieln as to [Father]. The issues of placement, if perhaps he and his mother are appropriate for placement, but that's a separate issue.

Id. at 161-62. Father's attorney responded:

I think we started out today with everybody besides me saying the kid lived with mom and only with mom. And now, at least DCS is willing to say that [N.E.] spent a good portion of time with [Father] also. I've turned at least one opinion today, and hopefully I can convince another person. The, the good portion of time that the child spent with [Father], the child wasn't exposed to domestic violence. The, the one sort of mark against [Father] is he does have a domestic violence conviction, but he did his time and he's working on his [anger management] classes right now. And that incident didn't occur in the home. [Father] has been established as father of the child, even though it was sort of without his knowing, as the exhibit A shows.... But now we've heard everything and we've got the one witness against [Father] which is [Mother], whose [sic] got all kind[s] of reason[s] to tell you the things that make it sound like [N.E.'s] been living with her. And you got witnesses that know the family. But won't gain anything personally regardless of what happens to [N.E.]. And so, I think that we can't let the specter of a bloody child seare us into finding kids in need of services and having them continue to be placed in foster care, out of their parents' home, when we do have at least one parent who's here to say, "She's never been bloody in my care and she won't be."

Id. at 162-68. The juvenile court then issued an order in which it found that N.E. was a CHINS, included a summary of each witness's testimony from the hearing,6 ordered N.E. to be a ward of the DCS with placement in continued foster care, and set the matter for disposition.

I believe that N.E. was properly determined to be a CHINS.7 It is true that we do not know exactly why the juvenile court determined N.E. to be a CHINS-that is, whether the court believed that N.E. spent a good amount of time with Mother, N.E.'s legal custodian, and that the domestic violence in Mother's home was enough to support a CHINS determination or whether it believed that N.E. spent the majority of her time with Father and Grandmother and that Father was not an appropriate parent based on his own recent domestic violence conviction, among other things. However, I believe that the acts or omis*92sions of one parent (especially the custodial parent) can support a CHINS determination and that there is not a separate analysis for each parent in the CHINS determination stage. That said, once a child is determined to be a CHINS, the juvenile court, at the dispositional stage, must analyze each parent separately to determine where to place the child.

Here, the juvenile court held the disposition hearing on May 30, 2008, and thereafter issued the following order, which pertained not only to N.E. but also to some of Mother's other children and their fathers:

The Court finds that reasonable efforts have been offered and available to prevent or eliminate the need for removal from the home. After reviewing the reports and information from the Office of Family and Children, service providers and other sources, which the Court now incorporates into this order (see Court file), the Court also finds that the services offered and available have either not been effective or been completed that would allow the return home of the children without Court intervention.
The Court finds that it is contrary to the health and welfare of the children to be returned home and that reasonable efforts have been made to finalize a permanency plan for the children.
The Court orders the children to be wards of the Marion County Office of Family and Children. The Court orders that the responsibility for placement and care of the child is ordered to the Marion County Office of Family and Children, with placement at: continued in foster care.
The Court proceeds to disposition and adopts the Pre-Dispositional Report of the Division of Family and Children and incorporates same as the findings of the Court, including plan of permanency which is hereby ordered. The Court also orders the Parental Participation, which is made a part of the order.
The Court now orders the children removed from the care of [Mother] and father[s], [] and [Father] pursuant to this Dispositional Order.

Appellant's App. p. 63. According to Indiana Code § 31-84-19-10, however, the dispositional order must be very detailed and specific:

(a) The juvenile court shall accompany the court's dispositional decree with written findings and conclusions upon the record concerning the following:
(1) The needs of the child for care, treatment, rehabilitation, or placement.
(2) The need for participation by the parent, guardian, or custodian in the plan of care for the child.
(3) Efforts made, if the child is a child in need of services, to:
(A) prevent the child's removal from;
or
(B) reunite the child with;
the child's parent, guardian, or custodian in accordance with federal law.
(4) Family services that were offered and provided to:
(A) a child in need of services; or
(B) the child's parent, guardian, or custodian;
in accordance with federal law.
(5) The court's reasons for the disposition.
(b) The juvenile court may incorporate a finding or conclusion from a predisposi-tional report as a written finding or conclusion upon the record in the court's dispositional decree.

I believe that the trial court's dispositional order here falls woefully short of the statutory requirements. This is especially so since the order covered four fathers and multiple children. The dispositional order *93is generic and contains nothing specific to Father. Although Indiana Code § 31-84-19-10(b) allows a juvenile court (which the court did here) to incorporate a finding or conclusion from a predispositional report as a written finding or conclusion upon the record in the court's dispositional decree, there is nothing in the predispositional reports directed at Father. The bottom line is that we do not know the juvenile court's reasons for its disposition. Ind.Code § 31-34-19-10(a)(5).

The lack of adequate findings is important because Indiana Code § 31-34-19-6 provides:

If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a disposi-tional decree that:
(1) is:
(A) in the least restrictive (most family like) and most appropriate setting available; and
(B) close to the parents' home, consistent with the best interest and special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the child's parent, guardian, or custodian; and
(5) provides a reasonable opportunity for participation by the child's parent, guardian, or custodian.

(Emphasis added). In addition, Indiana Code § 31-84-19-7 provides:

In addition to the factors under section 6 of this chapter, if the court enters a dispositional decree regarding a child in need of services that includes an out-of-home placement, the court shall consider whether the child should be placed with the child's suitable and willing blood or adoptive relative caretaker, including a grandparent, an aunt, an uncle, or an adult sibling, before considering other out-of-home placements for the child.

In light of the importance of placing a child in the least restrictive and most family-like setting and preference for placing the child with a suitable and willing blood relative and because we do not know the trial court's reason for its disposition regarding Father, I would remand this case for a new dispositional order pursuant to Indiana Code § 31-84-19-10.

Although the majority is also remanding this case, it is doing so for "the juvenile court to determine whether Father is willing and able to appropriately parent N.E.[8] since N.E. is a CHINS with respect to Mother." Op. at 89. Because I disagree with the general premise that a CHINS determination can be separated for each parent, agree with the juvenile court's CHINS determination, and would remand only for dispositional purposes, I therefore dissent.

. As the majority acknowledges, this Court in In re C.S., 863 N.E.2d 413 (Ind.Ct.App.2007), trans. denied, addressed a CHINS disposition as it related to each parent as separate issues, but it did so without any discussion or analysis as to why it was appropriate to do so under the statute. I believe that the issue in that case, as in this case, is the appropriate disposition.

. The DCS alleged that Mother had failed to protect N.E. and her other children from ongoing domestic violence between herself and the alleged father [D.P.] of her youngest child and that there had been several incidents of [D.P.] beating Mother in the presence of her children. As a result, there were two domestic violence cases pending against [D.P.]. In addition, the DCS alleged that Mother had continuously failed to cooperate in the prosecution of these domestic violence cases and had exhibited a lack of cooperation with the DCS to ensure the safety of her children. The DCS believed that based upon Mother's failure to protect her children and lack of cooperation, ""the children are in serious danger in the care of" Mother. Appellant's App. p. 66.

. I note that the summary of the testimony here serves no purpose. Because there are several conflicts in the evidence, the summary does not resolve these conflicts and therefore does not qualify as findings of fact.

. Although the CHINS petition did not contain any specific allegations against Father, Father was named in the petition, appeared before the court, was represented by an attorney, and freely took part in the CHINS proceedings. Notably, Father makes no due process argument on appeal concerning the lack of specific allegations regarding him in the CHINS petition. Therefore, I believe that Father tried his own conduct by implied consent.

8. I note that it is unclear from what CHINS statute this standard comes.