IN RE: H.T.G. (2025)

MEMORANDUM DECISION

Case Summary

[1] M.G. (Mother) appeals the trial court's determination that her children are Children in Need of Services (CHINS), raising two issues that we restate as whether her due process rights were violated by DCS's failure to provide a predispositional report within the statutory timeframe and whether the evidence is sufficient to support the adjudication. Finding that DCS's statutory violation did not violate Mother's due process rights and that the CHINS adjudication is not clearly erroneous, we affirm.

Facts and Procedural History

[2] Mother and J.T.P. (Father) are the parents of H.T.G., born August 2013, J.T.G., born March 2018, and D.T., born April 2022 (collectively, Children). Father was incarcerated throughout the pendency of the CHINS proceedings and does not participate in this appeal.

[3] On July 17, 2024, Indianapolis Metropolitan Police Department officers found J.T.G., then five, alone and barefoot “running back and forth up and down the street.” Appellant's App. Vol. II p. 47. Officers contacted the Indiana Department of Child Services (DCS), and Family Case Manager (FCM) Marilyn Stump visited the home that day to investigate. H.T.G., then ten, reported that he watched J.T.G. and D.T., then two, while Mother worked. He stated Mother generally left for work “around five or six in the morning” and returned sometimes as late as “midnight.” Id. at 51. Mother would prepare meals for Children before work, leaving the food out on the stove for H.T.G. to re-heat for his siblings throughout the day. H.T.G. also reported feeling unsafe in the home because “people bang on the doors and windows all the time” and due to the presence of “big spiders and rats.” Id.

[4] FCM Stump observed the house and found it “infested with cockroaches ․ on every surface of the home.” Id. The home had a “strong odor of rotting food and trash” and the food inside the home was expired or molded. Id. The exterior of the home was littered with trash and “soiled diapers.” Id. The Marion County Public Health Department had issued several ordinance violations against the property and building. Children appeared “filthy[.]” Id. None of them could clearly recall the last time they had bathed.

[5] Mother returned home and spoke with FCM Stump. Mother acknowledged her lack of childcare and the conditions of the home but stated she was from Honduras and had no family in the area, “no one will help [her]” and she needed to keep her employment. Id. at 48. FCM Stump presented “[n]umerous options” and attempted to “brainstorm[ ]” with Mother to address these issues. Id. She suggested alternative employment and attempting to find other transportation for Mother to work that would allow her to be home earlier; Mother was not receptive to these efforts. Id.

[6] FCM Stump arranged for Mother and Children to move temporarily into a hotel at DCS's expense. Mother initially agreed to go to the hotel that night but did not show up. The following day, FCM Stump again attempted to arrange for a hotel stay and even helped Mother coordinate childcare at the hotel. Still, Mother refused to vacate her current home, citing a need to remain near neighbors for transportation to work and to watch over her property so the landlord would not remove it.

[7] On July 22, DCS filed a petition alleging Children to be CHINS and a “Preliminary Inquiry” detailing DCS's interactions with the family on July 17 and 18. Although Children initially remained with Mother, the housing issues continued. In October, Children were removed and placed in foster care, where they have since remained.

[8] On November 14, the trial court held a hearing, which Mother did not attend but was represented by counsel. Mother and DCS submitted a “Deny and Submit Agreement” (the Agreement), which provided Mother denied the allegations in the CHINS petition, waived her right to a CHINS factfinding hearing, and agreed the trial court would make its CHINS determination “based on the information found in the Preliminary Inquiry and the CHINS Petition in this matter.” Id. at 132. The Agreement also provided that Mother would participate in home-based case management services and noted that she was contesting DCS's recommendation to participate in individual therapy.

[9] That same day, the court found Children to be CHINS.¹ At Mother's request, the court did not issue a dispositional order as to her and instead set a contested dispositional hearing to address “the necessity of ordering home-based individual therapy.” Tr. Vol. II p. 9. On December 12, the court held a dispositional hearing. That morning, prior to the hearing, Mother filed a motion to dismiss, citing DCS's failure to file a predispositional report forty-eight hours before the hearing as required by Indiana statute. The motion was addressed at the hearing, which Mother did not attend but was represented by an attorney. DCS acknowledged it had failed to provide a report, stating “in instances where we have a mediated agreement that has the services listed, we don't file [predispositional reports].” Id. at 20. The parties agreed that, per another Indiana statute requiring the dispositional hearing to be held within thirty days of the CHINS factfinding hearing, the dispositional hearing could not be continued to allow additional time for the predispositional report to be filed. Instead, DCS argued the proper remedy would be to hold the hearing, “order no services” and “set [the hearing] out again.” Id. at 22. The trial court agreed and denied Mother's motion to dismiss.

[10] Thereafter, the trial court issued a dispositional order, finding Children were to remain wards of DCS in their current placement and, as to Mother, ordering “no services until Mother makes herself available to DCS or appears in court.” Appellant's App. Vol. II p. 38. Mother now appeals.

Discussion and Decision

I. DCS's failure to provide the predispositional report to Mother prior to the hearing did not violate her due process rights.

[11] Mother argues her due process rights were violated because she “was entitled to have [a] predispositional report filed with the court before the dispositional hearing.” Appellant's Br. p. 20. When a child is found to be a CHINS, the trial court “shall order the department or a caseworker to prepare a predispositional report that contains a: (1) statement of the needs of the child for care, treatment, rehabilitation, or placement; and (2) recommendation for the care, treatment, rehabilitation, or placement of the child.” Ind. Code § 31-34-18-1(a). These reports “shall be made available at least forty-eight (48) hours before the dispositional hearing ․” Ind. Code § 31-34-18-6(a).

[12] Here, after Children were adjudicated as CHINS, the court ordered the preparation of a predispositional report as required by Section 31-34-18-1. But by the time of the dispositional hearing on December 12th, no report had been provided. As such, we agree with Mother that DCS violated Section 31-34-18-6 by failing to file a predispositional report within the allotted time. The State acknowledges the error but argues it does not warrant reversal of the trial court's order. We agree.

[13] As an initial matter, Section 31-34-18-6 does not contain a provision specifying a remedy should the statute be violated. Mother argues the proper remedy was dismissal. However, we note that other CHINS statutes plainly call for dismissal of the case without prejudice should the statute be violated. For example, Indiana Code section 31-34-19-1 states a dispositional hearing must be held within thirty days of the CHINS determination, and if it is not, the court “shall dismiss the case without prejudice.” That the legislature chose not to include such a provision in Section 31-34-18-6 leads us to determine such a remedy is not automatically warranted. See Wilson v. State, 189 N.E.3d 231, 233 (Ind. Ct. App. 2022) (noting it is just as important to recognize what a statute does not say).

[14] Mother then argues dismissal was required here because holding the dispositional hearing without the report is a violation of her due process rights. But mere failure to follow the statutory requirements does not necessarily equate to a due process violation. See Matter of B.R., No. 24A-JC-2594, 2025 WL 1319261, at 8* (Ind. Ct. App. May 7, 2025) (finding that while the trial court failed to comply with the CHINS procedural statutes, there was no due process violation).

[15] “ ‘The Due Process Clause of the U.S. Constitution and the Due Course of Law Clause of the Indiana Constitution prohibit state action that deprives a person of life, liberty, or property without a fair proceeding.’ ” In re C.G., 954 N.E.2d 910, 916 (Ind. 2011) (quoting In re Paternity of M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct. App. 2001), trans. denied). “Parental rights constitute an important interest warranting deference and protection[.]” Id. at 916-17. Our Supreme Court has held that “[d]ue process at all stages of a CHINS case is so vital because ‘procedural irregularities, like an absence of clear findings of fact, in a CHINS proceeding may be of such import that they deprive a parent of procedural due process with respect to a potential subsequent termination of parental rights.’ ” In re K.D., 962 N.E.2d 1249, 1258 (Ind. 2012) (quoting In re J.Q., 836 N.E.2d 961, 967 (Ind. Ct. App. 2005)).

[16] The United States Supreme Court has held “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotations omitted). Due process turns on the balancing of three factors discussed in Mathews: “(1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure.” C.G., 954 N.E.2d at 917. “In balancing the three-prong Mathews test, we first note that the private interest affected by the proceeding is substantial—a parent's interest in the care, custody, and control of her child.” C.G., 954 N.E.2d at 917. The countervailing Mathews factor—the State's parens patriae interest in protecting the welfare of a child—is “also substantial.” Id. Accordingly, we focus on “the third Mathews factor, the risk of error created by DCS's actions and the trial court's actions.” Id. at 918.

[17] In light of the particular facts of this case, the risk of error in proceeding with the dispositional hearing without the predispositional report was low.² The purpose of a dispositional hearing is for the court “to determine [the] next steps in the child's placement, care, treatment, or rehabilitation and the nature and extent of the parent's ․ role in fulfilling those steps.” Gr.J. v. Ind. Dep’t of Child Servs. (In re D.J.), 68 N.E.3d 574, 578 (Ind. 2017) (citing I.C. § 31-34-19-1). A predispositional report is “intended to assist the court in entering the dispositional order[.]” Matter of W.H., 254 N.E.3d 549, 558 (Ind. Ct. App. 2025).

[18] There is no indication in the record that the trial court was unable to properly consider the factors necessary to achieve its purpose even in the absence of the predispositional report. As to Children's placement and care, their removal from Mother and placement in foster care had already been determined. The dispositional order simply maintained the status quo and even left open the possibility of a change should new information come to light. See Appellant's App. Vol. II p. 37 (trial court ordering in the dispositional order that DCS “must continue exercising due diligence to identify all adult relatives of the children ․ who may be considered as out-of-home placements”). Mother argues the trial court was missing “critical information” as to the possibility of family placement for Children. Appellant's Br. p. 20. But we note Mother herself told DCS she had no family support. And given that Mother failed to attend both the CHINS determination hearing and the dispositional hearing, it is unclear how this information would have been given in her absence, even if a predispositional report had been provided.

[19] As to Mother's role in the CHINS case, she had already agreed to some aspects: she agreed to actively participate in, complete, and follow any recommendations from home-based case management. She also agreed to set the only other DCS requested service—home-based individual therapy—for a contested dispositional hearing, which the court timely held. However, in part due to the lack of a predispositional report and in part due to Mother's absence at the hearing, the trial court did not order Mother to participate in any services, including the therapy. Rather, the court ensured Mother's due process was not violated by withholding an order as to her services until she “appears or makes herself available to DCS.” Appellant's App. Vol. II p. 38.

[20] For these reasons, any risk of error in the trial court's chosen procedure was low. We cannot say Mother was deprived of due process.

[21] While we conclude that Mother's due process rights were not violated here, we are concerned by DCS's disregard for the proper procedures required by the statutes. DCS's statement at the hearing that it regularly fails to provide such reports where there is “a mediated agreement that has the services listed” fails to justify disregarding the statutory requirement for the report. Tr. Vol. II p. 20. As stated recently by this Court in B.R., we “strongly encourage DCS and trial courts to follow the statutory procedures because, under other circumstances, such failures may result in a due process violation.” B.R., 2025 WL 1319261, at *8.

II. The trial court's findings support its conclusion that Children's needs are unlikely to be met without State coercion.

[22] Mother also argues the evidence presented to the trial court was insufficient to support the CHINS finding. When determining whether there is sufficient evidence to support a CHINS determination, we neither reweigh the evidence nor judge the credibility of the witnesses. In re D.F., 83 N.E.3d 789, 796 (Ind. Ct. App. 2017). Rather, we consider only the evidence that supports the trial court's determination and reasonable inferences drawn therefrom. Id.

[23] The trial court found Children to be CHINS under Indiana Code section 31-34-1-1, which provides a child is a CHINS if that child is under eighteen and:

(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

(A) when the parent, guardian, or custodian is financially able to do so; or

(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; and

(2) the child needs care, treatment or rehabilitation that the child:

(A) is not receiving; and

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

DCS has the burden of proving by a preponderance of the evidence that the child is a CHINS. Ind. Code § 31-34-12-3. In sum, a CHINS adjudication “requires three basic elements: that the parent's actions or inactions have seriously endangered the child, that the child's needs are unmet, and (perhaps most critically) that those needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014), reh'g denied. Mother asserts DCS failed to show the final element, that Children's needs were unlikely to be met without State coercion. We disagree.

[24] We first note that although Mother did not admit Children were CHINS, she did waive her right to a factfinding hearing and agreed that the trial court could make its CHINS determination based on the information contained in the Preliminary Inquiry and the CHINS petition. The concerns identified in those documents involved Children being left unsupervised and the unsafe and unhygienic conditions of the home. H.T.G., then ten, was routinely left to look after the younger children for long periods of time while Mother worked. Mother reported not having consistent childcare. Furthermore, the housing conditions were unsafe and unhygienic, including rodent and insect infestations and spoiled food. DCS discussed potential solutions to these issues with Mother, including suggesting alternative employment and attempting to arrange childcare and safe housing. DCS even arranged for Mother and Children to live temporarily in a hotel at DCS's expense and helped Mother arrange for childcare at the hotel. But Mother declined these efforts, refusing to vacate her home and failing to engage with FCM Stump when she brainstormed other possibilities.

[25] Mother acknowledges the above facts but argues these are insufficient because the information contained in the Preliminary Inquiry and CHINS petition only detailed DCS's interactions with Mother over a few days’ time in July 2024.³ But DCS had immediate concerns for Children's health and safety given the consistent lack of supervision and unsafe conditions of the house. That Mother repeatedly refused to engage with DCS to address these issues despite multiple attempts over the two days is sufficient to show that Children's needs were unlikely to be met without State coercion. Furthermore, at the time of the CHINS determination Children remained out of the home due to Mother's “inability, refusal or neglect to provide shelter, care, and/or supervision at the present time.” Appellant's App. Vol. II p. 140 (emphasis added). This supports the trial court's finding that Children's needs were unlikely to be met without State coercion.

[26] Affirmed.

FOOTNOTES

1.   The court issued a dispositional order as to Father, finding in relevant part that Children were to remain in their current placement and ordering Father to contact DCS within seventy-two hours of his release from incarceration.

2.   We note that often the proper remedy in this situation would be a continuance in order for the predispositional report to be provided. However, in this case, the court could not continue the dispositional hearing as a separate statute required it to be held within thirty days of the CHINS finding. See Ind. Code 31-34-19-1(b).

3.   We note that the Deny and Submit Agreement in this case is not an admission by Mother and to the extent evidence of all of the essential elements is not contained within the stipulated documents, the submission of supplemental evidence may be necessary.

Scheele, Judge.

Foley, J., and Kenworthy, J., concur.