IN RE: H.W. (2025)

MEMORANDUM DECISION

Case Summary

[1] C.B. (“Mother”) appeals the trial court's grant of custody of her child to her parents. We affirm.

Facts and Procedural History

[2] Mother and J.W. (“Father”) (collectively, “Parents”) are the parents of H.W. (“Child”), born in January 2022. Father's paternity of Child was established in 2023, but he doesn't participate in this appeal.

[3] Parents have a long history of domestic violence. From 2019 to 2024, police were called to Parents’ home around 20 times for allegations of harassment and domestic violence. In October 2020, Parents had a physical fight during which Father was “noticeably intoxicated,” and they both sustained injuries. Appellant's App. Vol. 2 p. 26. Parents were both charged with and later pled guilty to Class A misdemeanor battery. Two years later, in November 2022, Parents participated in an informal adjustment with the Department of Child Services (DCS) due to domestic violence, Father's alcohol use, and unsafe sleep practices for Child. That case was closed successfully in May 2023.

[4] One night in March 2024, police were called to the home twice for domestic disturbances. When Father had returned home that evening, Mother wasn't there because she was out to dinner with Child and a friend. This made Father angry, so he texted Mother threatening to kill her and burn her belongings. When Mother and Child came home, Father, who'd been drinking, slapped Mother while she was holding Child. After Mother put Child down, Father slapped her again multiple times and pulled her to the ground by her hair. Father was arrested and charged with Level 6 felony domestic battery, among other things, and a no-contact order was issued prohibiting him from contacting Mother.

[5] After DCS received a report of the domestic violence in Child's presence, a family case manager (FCM) spoke to Mother about the incident. Mother disclosed that Father “is physical towards her 2 to 3 times a week, stating ‘it's bad’.” Id. at 27. But a few days later, Mother told the FCM that she “lied about everything” and that she was going to request the no-contact order be lifted so Father could come home. Id. at 28. Accordingly, DCS filed a petition alleging that Child is in need of services (CHINS). In May 2024, the trial court adjudicated Child to be a CHINS. Child remained in the home with Mother while Father lived elsewhere due to the no-contact order.

[6] Over the next month, Parents participated in family-preservation services, but Mother was “still not accepting that her relationship with [Father] is toxic due to the ․ domestic violence.” Id. at 96. Parents communicated and spent time with each other multiple times in violation of the no-contact order, including having shared parenting time with Child without notifying DCS. Father also continued to drink excessively and “admitted to self-medicating with alcohol to treat undiagnosed ADHD and Anxiety.” Id. at 93. Due to its inability to ensure that Child was in the care of a safe and sober caregiver, DCS filed a request to remove Child on June 28. The court granted the request on July 1, and DCS placed Child with Mother's parents (“Grandparents”). The court allowed Mother to live with Grandparents so long as her time with Child was fully supervised.

[7] On July 5, the court issued a dispositional order requiring Parents to, among other things, not use drugs or alcohol, participate in recommended services, refrain from domestic violence, and comply with the no-contact order. Mother participated in domestic-violence-victim services but continued to have contact with Father and believed that if he “ ‘just stops drinking’ they can be a family again.” Id. at 159. Her provider recommended that she participate in additional therapy “[t]o help process that cycle [of domestic violence] and the effect it has on her and her family” because it couldn't provide the level of care she needed. Tr. p. 53. Mother told DCS she planned to reunify with Father once the no-contact order was no longer in place.

[8] Mother's continued contact with Father was a point of contention with Grandparents. In November 2024, after finding out that Mother had been at Father's house, Grandparents decided they no longer wanted Mother living with them, so Mother moved out. She refused to go to a women's shelter and said she was staying with a friend but wouldn't give DCS the friend's address. Grandparents weren't willing to supervise Mother's visits with Child, so DCS referred Mother to a supervised-visitation provider. For his part, Father participated in batterer's intervention services and tested negative for alcohol for several months, but he tested positive for methamphetamine and amphetamine on November 16.

[9] By December, Mother had continued participating in therapy and domestic-violence services but was still “limited in terms of her insight into domestic violence impacts on the Child.” Appellant's App. Vol. 2 p. 222. Father began testing positive for alcohol again and had another positive screen for methamphetamine and amphetamine. Parents also continued to contact each other despite the no-contact order. In January 2025, due to Parents’ limited progress despite participating in services, the trial court added a concurrent permanency plan of custody by Grandparents. Later that month, Father pled guilty to Level 6 felony domestic battery, and the court there sentenced him to 180 days of home detention and vacated the no-contact order. After living with a friend for some time, Mother found her own apartment. But she stayed with Father sometimes and told DCS she might move back in with him.

[10] On February 27, DCS filed a motion for permanency and joinder asking the court to modify custody of Child in favor of Grandparents and to grant Grandparents party status in the CHINS and paternity cases. At the March permanency hearing, Namya Coleman, Mother's domestic-violence-services provider, testified that Mother had made progress in recognizing the effect of domestic violence on her and Child, but “[t]here is still a concern that she is not connecting with the true safety issue” posed by Father's drinking. Tr. p. 110. Coleman explained that although she and Mother had developed a safety plan, she was worried that Mother wouldn't actually implement the plan if violence were to occur. FCM Supervisor Mary Katie Bostic similarly expressed concern about Mother's “ability to act on the things that she is learning.” Id. at 128. Bostic explained that Mother's visitation remained supervised due to concern that she “will not make appropriate parenting decisions” during her parenting time and because Parents “continu[e] to downplay the impact that substance abuse and domestic violence has had on this family.” Id. at 138. The trial court continued the remainder of the hearing to April.

[11] By the April hearing date, Parents had moved back in together and begun joint supervised visits with Child. Ann Mahrdt, Child's court-appointed special advocate (CASA), recommended that Child be reunified with Parents. FCM Josie Hawkins disagreed with CASA Mahrdt's recommendation because Mother's progress had been limited and Father refused to address his positive drug screens or submit to a medication evaluation as recommended. She expressed concern that Mother “hasn't made a sufficient amount of progress to keep [Child] safe if [Child] were in her care, specifically, with [Father] present.” Id. at 157. FCM Hawkins also testified that since the last hearing date, several of Father's drug screens had been diluted. Coleman testified that Mother has continued to make progress and understands the negative impact of domestic violence on Child, but she was still worried about Mother's ability to put what she's learned into practice. Coleman ultimately recommended third-party custody by Grandparents.

[12] Father's case manager testified that Father was working hard and completed his batterer's intervention class. Father insisted that he didn't know why some of his drug screens were positive for methamphetamine and that he hadn't done anything to dilute his screens. When asked why he refused to undergo a medication evaluation, Father said he “do[es]n't believe in meds.” Id. at 221. After the close of evidence, the court asked DCS to provide additional information about the cause of Father's diluted drug screens within seven days. DCS said it would “file the screen and whatever Cordant says about dilute screens,” and the court noted that it would “give the parties an opportunity if they want to respond or request to present additional evidence on it.” Id. at 245.

[13] After the hearing, DCS filed a copy of an email from Cordant explaining that “[t]he most common cause of a dilute sample is ․ excessive consumption of liquid in a short period of time (1-2 hours) before the sample is collected” and that the dilution of Father's samples was “unlikely to be caused by something medically related” because Father “regularly produce[d] samples with acceptable creatinine levels.” Appellant's App. Vol. 3 p. 34. Parents didn't respond to this filing or request a hearing to present additional evidence on it.

[14] On May 14, before the court issued its permanency order, DCS and CASA Mahrdt each filed an updated report with the court. The reports stated that Father had been seen drinking alcohol the weekend before and that Parents’ May 12 visit with Child had been ended early due to safety concerns stemming from Father's behavior.

[15] In June, the trial court issued an order granting custody of Child to Grandparents, thereby terminating the CHINS case. The court noted that Parents could request modification of custody in the existing paternity case.

[16] Mother now appeals.

Discussion and Decision

[17] Mother contends the trial court erred in awarding Grandparents custody of Child. “Indiana Code section 31-30-1-13 grants CHINS courts concurrent jurisdiction over custody matters, providing the option to resolve CHINS cases through custody modification if appropriate.” In re J.M., 246 N.E.3d 303, 307 (Ind. Ct. App. 2024); see also In re A.M.J., 228 N.E.3d 1132, 1140 (Ind. Ct. App. 2024) (“[T]his statute evidences a clear intent by the legislature for a CHINS court to be able to establish or modify custody ․” (quotation omitted)). Child-custody determinations fall squarely within the discretion of the trial court, and we reverse only for an abuse of that discretion. In re Paternity of L.J., 223 N.E.3d 716, 720 (Ind. Ct. App. 2023). Where, as here, a trial court enters findings and conclusions sua sponte, we apply the two-tiered standard of whether the evidence supports the findings and whether the findings support the judgment. A.M.J., 228 N.E.3d at 1139. In conducting this review, we neither reweigh the evidence nor assess the credibility of the witnesses, and we consider only the evidence most favorable to the judgment. L.J., 223 N.E.3d at 720.

I. Any reliance by the trial court on the May 2025 DCS and CASA reports constituted harmless error

[18] Mother claims the trial court improperly relied on the May 2025 DCS and CASA reports because they were filed after the permanency hearing concluded. In its order granting third-party custody, the trial court noted:

While the matter was under advisement, DCS and CASA both filed additional reports to the Court regarding events after the Hearing. The Court provided notice to the Parties that the Court intended to consider the Reports in its determination and allowed the Parties to request an additional Hearing to address them. No Party requested the Court set an additional Hearing.

Appellant's App. Vol. 3 p. 79. But as Mother points out, there is no indication in the record that the court provided any such notice. See Appellant's App. Vol. 2 p. 17. Although the court stated at the end of the permanency hearing that it would “give the parties an opportunity if they want to respond or request to present additional evidence,” this was in reference to the supplemental information DCS would be filing about Father's diluted drug screens. The court never stated that it would consider any other information following the close of evidence.

[19] That said, it is unclear to what extent the court relied on the May 2025 reports in making its custody determination because it didn't make any findings or conclusions specific to the reports. And as explained further below, the evidence presented at the permanency hearing is sufficient to support the court's custody determination, even without the reports. Indiana Appellate Rule 66(A), which sets forth the standard for harmless error, provides that an error “in any ruling or order or in anything done or omitted by the trial court” is not ground for reversal “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.” Given the evidence supporting the trial court's custody determination, any reliance by the court on the May 2025 DCS and CASA reports was harmless error. See In re Br.B., 139 N.E.3d 1066, 1072 (Ind. Ct. App. 2019) (finding no basis for reversal where CHINS order didn't mention one piece of challenged testimony and other challenged testimony wasn't cited as basis for CHINS determination), trans. denied.

II. The trial court's findings of fact are not clearly erroneous

[20] Mother also challenges two of the trial court's findings of fact. We will not set aside the trial court's findings unless they are clearly erroneous. Steele-Giri v. Steele, 51 N.E.3d 119, 125 (Ind. 2016). “Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them.” Id.

[21] Mother contends the following findings are unsupported by the evidence:

4. Respondent Parents have engaged in services, but there are significant lingering concerns regarding domestic violence by Father and Father's ongoing consumption of alcohol. Additionally, significant concerns regarding Mother's ability to protect the Child from domestic violence exposure persist despite significant participation in services.

8. Respondent Parents, due to unaddressed concerns with domestic violence, decision-making, and substance abuse by Father, are not able to provide care and supervision for the Child on an ongoing basis․

Appellant's App. Vol. 3 pp. 79-80. Both Coleman and FCM Supervisor Bostic expressed concern about Mother's failure to grasp the danger of Father's drinking and whether she could implement what she's learned in her services. Bostic explained that Mother's visitation remained supervised because she “continu[ed] to downplay” the impact of Father's substance abuse and domestic violence. FCM Hawkins testified that Mother's progress was limited, and she feared that Mother “hasn't made a sufficient amount of progress to keep [Child] safe if [Child] were in her care, specifically, with [Father] present.” This evidence supports Findings 4 and 8. Mother's arguments to the contrary rely on the evidence least favorable to the judgment, but these are impermissible requests for us to reweigh the evidence. See L.J., 223 N.E.3d at 720. The trial court's findings of fact are not clearly erroneous.

III. The trial court's award of custody to Grandparents is supported by clear and convincing evidence

[22] Finally, Mother contends the trial court abused its discretion in awarding third-party custody of Child to Grandparents. In a custody dispute between a natural parent and a third party, we begin with a presumption that the natural parent should have custody of her child. L.J., 223 N.E.3d at 720. The third party bears the burden of overcoming this presumption by clear and convincing evidence. Id. “Evidence sufficient to rebut the presumption may, but need not necessarily, consist of the parent's present unfitness, or past abandonment of the child such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child.” In re Guardianship of L.L., 745 N.E.2d 222, 230 (Ind. Ct. App. 2001), trans. denied. If the presumption is rebutted, the court engages in a best-interests analysis using the factors in the relevant custody statutes. Id.

[23] Here, evidence of Mother's unfitness as a parent was sufficient to overcome the natural-parent presumption. Throughout the CHINS case, Mother downplayed the effects of domestic violence and Father's drinking on her and Child. Although she participated in domestic-violence-victim services and individual therapy, as noted above, both Coleman and FCM Supervisor Bostic expressed concern at the permanency hearing that she wouldn't be able to implement what she's learned. And, perhaps most concerningly, despite the long history of domestic violence by Father (two criminal cases, an informal adjustment with DCS, and 20 police calls to the house from 2019 to 2024), after the no-contact order was vacated in Father's criminal case, Mother moved back in with him. Mother argues that “Father's actions in this case, and the court's concerns about Father's potential future actions, were not sufficient to prove Mother's unfitness as a parent.” Appellant's Br. p. 23. But given that Mother was still living with Father at the time of the custody determination, we disagree.

[24] The evidence was also sufficient to establish that custody by Grandparents is in Child's best interests. As the trial court found, “Parents, due to unaddressed concerns with domestic violence, decision-making, and substance abuse by Father, are not able to provide care and supervision for the Child on an ongoing basis.” See Ind. Code § 31-14-13-2 (including among factors for custody determination, “The mental and physical health of all individuals involved,” and “Evidence of a pattern of domestic or family violence by either parent”). Despite the no-contact order in Father's domestic-battery case—which the CHINS court ordered Parents to comply with in its dispositional order—Parents continued to have contact, including Mother allowing Father around Child outside of his supervised parenting time, which led to Child's removal and placement with Grandparents. At the time of the permanency hearing, Mother still hadn't grasped the danger posed to her and Child by Father's drinking. Father admitted to “self-medicating with alcohol to treat undiagnosed ADHD and Anxiety,” yet he refused to undergo a medication evaluation as recommended by his service providers because he “do[es]n't believe in meds.” He also refused to address his positive drug screens and had several diluted screens. And although Mother had made progress in her domestic-violence services, there were still “significant concerns regarding Mother's ability to protect the Child from domestic violence exposure.” The trial court did not err in concluding that custody by Grandparents is in Child's best interests.

[25] The trial court did not abuse its discretion in awarding Grandparents custody of Child.

[26] Affirmed.

Vaidik, Judge.

Mathias, J., and Pyle, J., concur.