L.E. Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] L.E., the custodian and great aunt of M.W. (Child), appeals the trial court's Child in Need of Services (CHINS) determination, claiming that the order was clearly erroneous. L.E. attacks various findings of fact and conclusions of law and maintains that the CHINS order must be vacated because the trial court's determination was based on “the inconsistent and unreliable statements of Child and coercive intervention of the court was not necessary.” Appellant's Brief at 4.

[2] We affirm.

Facts and Procedural History

[3] L.E. became Child's guardian and foster parent on October 27, 2009.  ¹ Child's mother (Mother) agreed that L.E. should have custody of Child after the Indiana Department of Child Services (DCS) became involved with Mother who is disabled and has mental health issues.

[4] On June 19, 2023, while Child and L.E. were living with L.E.’s boyfriend, DCS received a report that Child was being sexually abused by his sixteen-year-old cousin (Cousin). The report indicated that although Child made L.E. aware of the abuse, she refused to believe him.

[5] During a forensic interview that same day, Child disclosed that Cousin had been putting “his thing in [his] behind since he was six years old,” and the last time Cousin performed this act was when Child was thirteen. Appellant's Appendix Vol. II at 34. After the interview, a DCS family case manager (FCM) spoke with L.E. about the accusations. L.E. stated that she did not believe Child's allegations and that Mother put the idea in Child's head because she wanted to regain custody of Child.

[6] On June 23, DCS filed a verified petition alleging that Child was a CHINS based on the sex abuse allegations. Mother regained custody of Child later that summer and at some point during a visit with L.E. in September, Child recanted his original statement about the abuse. Child later stated that he recanted because he was scared and L.E. and Boyfriend constantly brought up the allegations he had made against Cousin.

[7] Between October 10 and November 17, the visitation supervisor with “Changing Your World” facility (the Supervisor) observed visits with Child, L.E., and Boyfriend. Transcript Vol. I at 137. L.E. was inconsistent with meeting days and times, and the Supervisor observed that Child was extremely stressed during the visits. The Supervisor also noticed that L.E. and Boyfriend were “team[ing] up on [Child],” yelling at him, and not showing any empathy when Child expressed his feelings. Id. at 139-40. The Supervisor recommended that Child's visits with L.E. and Boyfriend cease, and that Child should be surrounded by people who were understanding of the situation. The Supervisor also believed that L.E. and Boyfriend were creating a hostile environment for Child.

[8] On October 12 and December 14, the trial court conducted a fact-finding hearing on the CHINS petition. Child testified that Cousin “put his penis in [his] butt.” Transcript Vol. I at 55-56. On cross-examination, Child testified that he changed some of his answers because he was “scared.” Id. at 71. Child recalled additional details about the abuse and testified that Cousin had “taken [Child's] clothes off” and had “threatened to kill [him].” Id. at 56, 74. Cousin testified at the hearing and denied all allegations.

[9] Child's therapist, Elizabeth Goldsbury, recommended that Child participate in a psychosexual evaluation because Child exhibited sexualized behavior towards peers and family. Child had also videotaped his younger cousins while they were getting dressed. Goldsbury testified that Child's behaviors indicate that he had been sexually abused, and that his behaviors are attributable to past trauma. Goldsbury recommended that Child continue therapy so his past traumas and his recent behaviors could be monitored.

[10] On January 25, 2024, the trial court issued findings of fact and conclusions of law and determined that Child was a CHINS based on the sexual abuse and L.E.’s continued denial of the abuse.

[11] L.E. now appeals.

Discussion and Decision

[12] L.E. argues that there was no evidence to support the CHINS determination, other than Child's testimony and statements. L.E. challenges several of the trial court's findings and conclusions and maintains that we must apply the “incredible dubiosity rule which allows [us] to reevaluate [Child's credibility].” Appellant's Brief at 8.

[13] A CHINS adjudication focuses on the needs and condition of the child, rather than the parent's culpability. In re N.E., 228 N.E.3d 457, 476 (Ind. Ct. App. 2024). Put another way, a CHINS adjudication is not a determination of parental fault but rather is a determination that a child is a CHINS and is unlikely to receive necessary services without court intervention. Id. The acts or omissions of a parent can cause a condition that creates the need for court intervention. Id.

[14] DCS must prove by a preponderance of the evidence that a child is a CHINS as defined in the juvenile code. Id. at 475. As is relevant here, Ind. Code § 31-34-1-3 (a)(2)(A)(B) provides that a child is a CHINS if he or she is a victim of a sex offense 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.”

[15] In this case, the trial court entered findings of fact and conclusions of law following the fact-finding hearing. Thus, we apply a two-tiered standard of review. In re Des. B., 2 N.E.3d 828, 836 (Ind. Ct. App. 2014). We consider first 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 trial court's ability to assess witness credibility and do not 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 of law. Id. And we accept unchallenged findings as true. Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind. Ct. App. 2019).

[16] L.E. challenges the following findings of fact and conclusions of law, alleging that they were based on Child's contradictory and unbelievable testimony:

11. [Child] disclosed during the forensic interview that [Cousin] has been anally penetrating him since he was six years old, specifically stating that [Cousin] has put his “thing in my behind.” [Child] stated that the last time this occurred was when he was 13 years old and that he told [L.E.] and other family members and they said that they did not believe him, and he got a “whooping” for it.

* * *

19. Around [Child's] birthday in June 2023, [Cousin] put his “thing” in [Child's] “butt,” while [Child] was in [Cousin's] room, on the bed, playing on his phone. [Child] clarified that what he meant by “thing” is “penis” and that [Cousin] hurt him. When [Cousin] put his penis in his butt, he felt “angry, sad, and upset.”

20. [Child] tried to yell, but [Cousin] held his mouth with his hand and said, “don't tell, or I will kill you.” [Child] told [L.E.] and [Boyfriend], but they told him to go to his room because they didn't believe him.

21. A few weeks later, [Child] told his other grandmother and cousin on his mother's side about the sexual abuse. They “handled it” by taking him to the police station and that started DCS involvement.

22. At a visit in September 2023, [Child] did recant his original statement from the forensic interview. However, [Child] reported that he was scared because [L.E. and Boyfriend] kept bringing up what happened with [Cousin]. [Child] requested that he no longer have visits with [L.E. or Boyfriend] because he doesn't like when they ask him about [Cousin].

․

24. [Child] later recalled while testifying that [Cousin] used his hands to take [Child's] clothes off and [Child] said, “somebody help.” [Cousin] said that he would kill [Child]. [Child] told [Cousin's] mother while they were in the car alone, getting Taco Bell. When they got back to [L.E.’s] home, [Cousin's] mother asked [Cousin] about the allegations.

25. The sexual abuse began when [Child] was about six years of age.

* * *

29. [Cousin] reported that [L.E.] didn't want him living in the home when foster kids were there because she was worried “lies would be told.”

30. [Cousin] admitted that in October 2023, another cousin had accused him of inappropriately touching her and he spoke with a detective about those allegations. ․

․

33. Ms. Goldsbury testified that these behaviors are a sign that he has been sexually abused in the past. She attributes [Child's] behaviors to past trauma and [Child] not understanding boundaries and what is or isn't appropriate behavior.

* * *

37. Prior to one visit, [Child] told [a visitation facilitator] that visits stressed him out and he doesn't feel safe around [L.E. and Boyfriend]. When [Child] vocalized his feelings to [L.E. and Boyfriend], they ․ showed no empathy towards [Child].

CONCLUSIONS OF LAW

6. [Child's] physical and mental conditions are seriously endangered by [L.E.’s] failure to protect him when he disclosed sexual abuse by [Cousin]. When [Child] disclosed the sexual abuse to [L.E.], she did not take appropriate steps to ensure no further sexual abuse would happen to [Child]. It wasn't until [Child] disclosed to other family members, that he finally received the help that he needed for his trauma. [L.E.] failed to get [Child] therapeutic treatment, despite his claims of being a victim of sexual abuse.

8. [L.E.’s] continued denial of [Child's] sexual abuse has shown that the coercive intervention of the Court is the only means by which she will participate in the aforementioned services necessary to develop the skills they and the child need.

* * *

10. In criminal cases, a conviction of child molesting may rest solely on the uncorroborated testimony of the alleged victim. Baber v. State, App. 2007, 870 N.E. 2d 486. Additionally, there is case law that has stated that “evidence was sufficient to support [a] conviction for Class C Felony child molesting, despite inconsistencies in child's testimony; uncertainties and inconsistencies were appropriate to circumstances presented, namely, victim's age, and passage of time between incident and time of her statements and testimony, and there was clear, unequivocal testimony that established necessary elements of [the] offense.” Fajardo v. State, [859 N.E.2d 1201, 1209 (Ind. 2007)].

11. The Court finds that [Child's] testimony was credible. Although there were inconsistencies in what was testified to at the Fact-Finding hearing and what was disclosed at the forensic interview, those can be explained by [Child's] age, intellectual delay, and the passage of time when the sexual abuse occurred. [Child] continues to disclose that [Cousin] anally penetrated him.

12. [Child] is a victim of child molest and is currently exhibiting concerning behaviors that he needs to address in therapy and a psychosexual evaluation. [Child] has untreated trauma that the therapist is addressing, but he is exhibiting newer symptoms that a psychosexual evaluation can provide further insight.

13. The Court finds that [Child] is a victim of sexual abuse as defined by I.C. 31-34-1-3, more specifically, I.C. 35-42-4-3, in that prior to [Child] turning 14 years of age, [Cousin] did anally penetrate him, on at least one occasion and [Child] needs services that he is currently not receiving and is unlikely to receive without the coercive intervention of the Court. As previously noted, [Child's] legal guardian, [L.E.], testified at the Fact-Finding hearing that she still did not believe that [Child] had been sexually abused by [Cousin]. It is unlikely that [L.E.] would ensure that [Child] continues to receive therapy to address his past traumas and current symptoms.

. Appellant's Appendix Vol. II at 34-43.

[17] L.E. maintains that the CHINS order must be set aside in accordance with the “incredible dubiosity rule.” Appellant's Brief at 11. Under this doctrine, courts may impinge upon a factfinder's responsibility to judge the credibility of a witness when “the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.” Hampton v. State, 921 N.E.2d 27, 29 (Ind. Ct. App. 2010), trans. denied. Within the narrow confines of this rule, if a sole witness presents inherently improbable testimony and there is no circumstantial evidence, “a defendant's conviction may be reversed.” Dallas v. Cessna, 968 N.E.2d 291, 298 (Ind. Ct. App. 2012) (emphasis in original). Moreover,

[t]he incredible dubiosity rule represents an exception to the general prohibition against reweighing a witness’ testimony in criminal proceedings and its application is extremely limited and sporadic. In this light—and even discounting the disparity in burden of proof between criminal and civil proceedings—we decline Dallas’ invitation to extend the applicability of the rule to civil proceedings.

Id. at 298-99 (emphasis in original).

[18] Because CHINS proceedings are civil in nature, see In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012), we decline to apply the incredible dubiosity rule here. And even if we were to invoke the rule, we would not find Child's testimony to be incredibly dubious. While there were some contradictions and inconsistencies in Child's pretrial statements and testimony, he unequivocally testified that Cousin “placed his penis in his butt,” thus establishing that Cousin sexually abused him. Transcript Vol. II at 55, 80. We will not impinge on the trial court's assessment of Child's credibility, and L.E.’s contention fails. See, e.g., Hobbs v. State, 160 N.E.3d 543, 556 (Ind. Ct. App. 2020) (the incredible dubiosity rule did not apply when victims of child molestation “unequivocally testified’ that the defendant had molested them, even though their testimony contradicted various statements made during an interview), trans. denied.

[19] Additionally, while L.E. challenges the propriety of the conclusions of law enumerated above, she only sets forth arguments pertaining to conclusions eight (L.E.’s continued denial of Child's sexual abuse has shown that the coercive intervention of the Court is the only means by which she will participate in necessary services) and eleven (concluding that Child's testimony was credible). Thus, L.E. has waived her claims as to the remaining conclusions. See, e.g., In re Garrard, 985 N.E.2d 1097, 1104 (Ind. Ct. App. 2013) (holding that a party waives an issue when she fails to develop a cogent argument or provide adequate citation to authority and portions of the record), trans. denied; see also Ind. Appellate Rule 46(A)(8).

[20] As for L.E.’s challenge to conclusion eight—that court intervention is necessary—the record demonstrates that L.E. failed to acknowledge that Child had been sexually abused and she saw nothing improper with her failure to address Child's claims. When Child informed L.E. of the abuse, she did not believe Child and threatened to discipline him for lying. Even after DCS became involved, L.E. continued to believe that Child was lying about the allegations and blamed Mother for those lies. Additionally, L.E.’s visits with Child were not positive and she was not consistent with meeting days and times. The Supervisor observed that L.E. caused Child stress during the visits, in that L.E. and Boyfriend would yell at Child, “team up” on him, and try to get him to answer questions about his claims of abuse. Transcript Vol. I at 139-40. In short, L.E.’s actions and comments demonstrated that she was not willing to seek help to prevent the abuse to Child. Thus, the trial court's conclusion that court intervention was necessary was not clearly erroneous. See, e.g., Matter of Br.B., 139 N.E.3d 1066, 1074 (Ind. Ct. App. 2019) (affirming a CHINS adjudication where father refused to accept responsibility and blamed his children's trauma on someone else), trans. denied.

[21] Finally, because we have determined that the trial court reasonably concluded that Child's testimony was credible, we reject L.E.’s contention that the conclusion regarding this issue was clearly erroneous. For these reasons, we affirm the CHINS adjudication.

[22] Judgment affirmed.

FOOTNOTES

1.   Child was born on June 10, 2009.

Altice, Chief Judge.

Judges Vaidik and Scheele concur. Vaidik, J. and Scheele, J., concur.