IN RE: C.S. (2026)

MEMORANDUM DECISION

[1] A.R. (“Mother”) and B.S. (“Father”) (collectively, “Parents”) appeal the trial court's adjudication of their four minor children, C.S., D.S., E.S., and F.S. (“the Children”), as Children in Need of Services (“CHINS”). Parents raise two issues for our review, which we restate as follows:

1. Whether Parents preserved their argument that the Indiana Department of Child Services (“DCS”) violated their substantive and procedural due-process rights for appellate review.

2. Whether DCS presented sufficient evidence to support the Children's CHINS adjudications.

DCS raises an additional issue on cross-appeal, which we restate as follows:

3. Whether the trial court erred when it dismissed DCS's allegations that Father had committed the offense of child molesting against D.S.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] Mother and Father are the biological parents of the Children, each of whom is eight years old or younger. In 2023 and early 2024, Parents and the Children lived together in Richmond.

[4] In April 2024, DCS received a report that D.S. had an abscessed tooth that had gone untreated since November 2023. DCS was further informed that C.S. had a prescription for glasses but had not worn glasses for several days. DCS assigned a Family Case Manager (“FCM”) to investigate the allegations; when the FCM appeared at the family residence to follow up on the reports, Mother and Father “became verbally aggressive,” were “uncooperative,” and “refused” to allow the FCM to walk through the family home. Supp. Tr. Vol. 2, p. 7.

[5] Accordingly, the FCM interviewed D.S. at her school. The FCM observed that D.S. “was wearing a dirty and dingy dress,” her hair was “uncombed,” and, based on what appeared to be fading pen marks on her body, she appeared to not have “bathed recently.” Id. The FCM returned to the family residence that evening, and Parents again “refused” to allow the FCM into the home. Id. They did, however, allow the FCM to “observe” the two younger children, E.S. and F.S. The FCM observed that E.S. and F.S. had “full diapers, matted hair, and dirty bodies.” Id.

[6] When asked about D.S.’s abscessed tooth, Parents informed the FCM that they had a dentist appointment scheduled for D.S. The FCM repeatedly followed up with Parents for confirmation of D.S.’s appointment and alleged treatment over the next month, but Parents refused to provide supporting documentation to the FCM. When the FCM arrived at the family home on an unannounced visit to follow up on D.S.’s alleged care, Mother instructed the FCM to “leave the property.” Id. at 8.

[7] One week later, on May 13, DCS received a new report regarding possible “physical abuse and sexual assault” of D.S. Id. at 83. The FCM again interviewed D.S. at her school, and D.S. was also forensically interviewed at the JACY House, a child-advocacy center. D.S. gave no indication of possible sexual assault, but she did state that she “felt unsafe in the home due to the lack of electricity” and because Mother had struck her in the eye, leaving a mark. Id. at 8. The FCM concluded that the report of possible sexual assault was unsubstantiated but followed up on the possible lack of safety in the home for D.S. Specifically, the FCM made an unannounced visit to the family home with law enforcement, but Mother again refused to allow the FCM inside. The FCM was able to observe, however, that the Children were dirty and in dirty clothes at the home.

[8] On June 7, DCS filed its initial petitions alleging the Children to be CHINS. The initial petitions alleged unattended-to medical needs of the Children, unsanitary home conditions, and possible physical abuse of D.S. The initial petitions made no mention of allegations of sexual assault of D.S. Following an initial hearing, the trial court ordered the Children to be removed from Parents’ care. Over the next several months, the Children were medically evaluated. Medical-care providers diagnosed F.S. with gait abnormalities and recommended physical therapy and leg braces for him both to correct current issues and to prevent long-term issues. And, starting in July, D.S. began weekly therapy meetings with a therapist, Jamie Hennies.

[9] In mid-August, D.S.’s foster family reported that she had made comments about inappropriate touching by Father and C.S., her older brother. Hennies met with D.S. at her foster home, and D.S. disclosed the following to Hennies:

At that point, [D.S.] said, “my brother [C.S.] humps me and that's not a safe touch.” That is also what [the foster mother had] said that [D.S. had] reported to her. So at that point I ․ asked [D.S.] if she could take some dolls and show me what she meant by humps ․ So I had her take two dolls. The first doll she designated as herself. And the second doll she designated as [C.S.] ․ She laid the [D.S.] doll down flat on its back and she took the [C.S.] doll and put it on top and kind of wiggled it in the butt area up and down[ ] and said[,] “this is what I mean.” At that point, then she said, “and my dad does this too.” And I said, “can you tell me a little bit more about that?” And, at that point[,] she took the doll and moved its head down to the crotch area and said, “my dad does this too.”

Tr. Vol. 4, p. 18. Hennies and D.S.’s foster family “immediately” contacted DCS's case worker following those statements, and law enforcement officers were also contacted. Id. at 20. At a pretrial hearing on the CHINS petitions about one week later, DCS informed the court and Parents that allegation of sex offenses against Father had been made, but DCS noted that it had not yet had the chance to follow up on the report. DCS never amended the initial petitions to reflect any sex-offense allegations.

[10] The court held the fact-finding hearing on DCS's initial petitions in late September. At that hearing, DCS called Hennies to testify. Father's counsel objected, and the court asked DCS about Hennies's likely testimony. DCS informed the court that Hennies would testify to the sex-offense disclosures D.S. had made to her in mid-August. Supp. Tr. Vol. 2, p. 146. The following colloquy then occurred:

The Court: ․ DCS unsubstantiated ․ that allegation [in May] ․, correct?

[Counsel for DCS]: But there's a recent allegation again on it ․ [T]his came out on August [16, 2024].

The Court: Okay․ [I]n your discovery, did you know there was a second allegation?

[Counsel for Father]: Your Honor, ․ we knew that there was one allegation. We ․ knew there was a JACY House interview, but it sounds like there may have been two.[1] Certainly we were never provided with a copy of [any] ․ interview․ And ․ although I ․ received some materials referencing FCMs[’] conversations with this witness, I don't have this witness's notes in my discovery.

Id. at 147-48 (capitalization removed).

[11] The court informed DCS that it did not appreciate DCS “hit[ting]” the parties “completely out of the blue” with sex-offense allegations against Father, and DCS had known of the allegations for more than one month but had not sought to amend the petitions. Id. at 148. Father then requested a continuance as he was “completely unprepared to address these allegations,” and he asked the court to compel DCS to disclose all relevant interviews with D.S. Id. at 149. The court agreed and asked DCS if it wanted to continue the proceedings and file amended petitions. But DCS declined, stating that it would prefer to proceed on the petitions as filed, and, if DCS decided based on further evidence that the sex-offense allegations were substantiated, it would file new petitions accordingly. DCS then briefly concluded its examination of Hennies and, thereafter, rested.

[12] After the fact-finding hearing on the initial petitions, the court entered its order and found that DCS had failed to carry its burden of proof that the Children were CHINS. The court ordered the Children to be returned to Parents’ care accordingly. The court's order was noted on the CCS on September 30. On October 2, DCS requested the court's permission to file new petitions alleging the Children to be CHINS based on the allegations that Father had molested D.S.

[13] DCS did not return the Children into Parents’ care between September 30 and October 2, and Parents moved to hold DCS in contempt of the court's order on the initial petitions. In an early October hearing, the trial court reiterated DCS's obligation to comply with the September 30 order, and DCS returned the Children to Parents’ care. At a separate hearing three weeks later, the court held DCS in contempt of court for violating the September 30 order. At that same hearing, the court authorized DCS to file the new petitions and, in an accompanying order shortly after the hearing, to again remove D.S. from Parents’ care.

[14] Parents moved to dismiss DCS's new petitions. In his motion to dismiss, Father argued that DCS's new petitions were barred by claim preclusion. Appellants’ App. Vol. 2, p. 68. Mother argued the same in her motion to dismiss and in an accompanying brief. Id. at 62, 92-95. The court held a hearing on Parents’ motions. At that hearing, Parents reiterated their claim-preclusion arguments, and the court took the motions to dismiss under advisement.² Tr. Vol. 2, pp. 43-48. In doing so, the court suggested that it would disapprove of evidence DCS might offer on the new CHINS petitions that was available to DCS at the September fact-finding hearing on the initial petitions. Id. at 46-47.

[15] Thereafter, the court permitted DCS to amend the new CHINS petitions. In addition to continuing to allege that D.S. was a CHINS as a victim of a sex offense, the last-amended petitions alleged, based on observations that occurred on October 3 or later, that the family home was unsanitary and infested; that C.S., E.S., and F.S. were “dirty” and two of them were “infected with head lice”; that F.S. was not receiving appropriate medical care for his legs and feet; that F.S. was observed to have a bruise and scratch on his face; and that “a weed pipe” was found in the family home. Appellants’ App. Vol. 2, pp. 236-37; Tr. Vol. 4, p. 9.

[16] The court held the fact-finding hearing on the new CHINS petitions across multiple days in November 2024 and January 2025. During those hearings, DCS called Hennies to testify, and she recounted D.S.’s mid-August 2024 disclosures to her at D.S.’s foster home. On cross-examination, Hennies made clear that she was unaware of any additional disclosures made by D.S. following the mid-August disclosures.

[17] DCS also called Christina McHenry to testify. McHenry conducted forensic interviews of D.S. after D.S. had spoken with Hennies. McHenry conducted her first forensic interview of D.S. on August 28, 2024, twelve days after D.S.’s disclosures to Hennies, and D.S. repeated the alleged molestation by Father in that interview. D.S. also stated that “something” like “applesauce” came “out of his pee-pee,” and “he spread” it on D.S.’s “tummy.” Tr. Vol. 2, p. 222. That interview was video-recorded and provided to DCS that same day, which, again, was about one month prior to the fact-finding hearing on DCS's initial CHINS petitions. On November 7, about one month after DCS had requested to file the new petitions, McHenry conducted a second forensic interview of D.S. at the request of investigating law enforcement officers, but D.S. did not make any new disclosures during the second interview.

[18] As a result of D.S.’s mid-August disclosures, Wayne County Sheriff's Department Officer Heather Edwards began investigating Father for child molesting. At the fact-finding hearing on DCS's new CHINS petitions, Officer Edwards testified that her investigation continued until she submitted her report to the prosecutor's office, which she did in December 2024. And, as a result of Officer Edwards's investigation, on December 30, 2024, the State charged Father with Level 4 felony child molesting in case number 89D01-2412-F4-49, which case remains pending.³ The State declined to file criminal charges against Mother.

[19] DCS also presented evidence in support of its allegations that Parents’ home was unsafe for the Children. In particular, DCS called Case Manager Supervisor Amy Banta. Banta testified that DCS took custody of C.S., E.S., and F.S. on December 5 after the court permitted DCS to amend the new CHINS petitions. In doing so, she observed that C.S. and E.S. had a “prevalent” amount of living lice and eggs on their bodies. Tr. Vol. 4, p. 40. They also had numerous “open scratch marks” on their heads and were “scratching at those raw spots” during the intake. Id. Banta added that, while no lice was found on F.S., he had “lots of dirt” all over his body; he was not “wearing his [leg] braces”; and he had a bruised eye and a scratch underneath it. Id. at 41.

[20] Further, DCS called several witnesses who testified that Parents’ home was unclean and infested with cockroaches and other pests. And DCS also presented substantial testimony showing that Parents disregarded F.S.’s medical needs, namely, his need to wear leg braces. During its closing argument to the court, DCS asserted that the State's December 2024 filing of child-molestation charges against Father was, standing alone, a sufficient basis for a CHINS finding. Id. at 122.

[21] Following the fact-finding hearing on DCS's new CHINS petitions, in April 2025 the court granted Parents’ motions to dismiss the petitions with respect to the child-molesting allegations on the theory that those allegations were based solely on evidence that DCS could have presented at the September fact-finding hearing on DCS's initial CHINS petitions. In reaching that conclusion, the trial court did not mention the criminal charges filed by the State against Father in December 2024. See Appellants’ App. Vol. 3, pp. 59-64.

[22] As for DCS's additional, post-October 3, 2024, allegations, the court found the Children to be CHINS based on the conditions of Parents’ home and Parents’ inability to provide the Children with appropriate shelter, care, and supervision. The court found F.S. to be a CHINS for the additional reason that Parents had failed to provide him with necessary medical care.

[23] This appeal ensued.

Standard of Review

[24] Parents appeal the trial court's adjudication of the Children as CHINS. Where, as here, the trial court's decision is supported by findings of fact and conclusions thereon following an evidentiary hearing, we will not set aside the decision unless it is clearly erroneous. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind. 2012). We will neither reweigh the evidence nor assess the credibility of the witnesses, and our review is constrained to the evidence most favorable to the judgment. Id. at 954. However, we review questions of law de novo. E.g., In re J.C., 142 N.E.3d 427, 429 (Ind. 2020) (per curiam).

1. Parents’ due-process arguments are not properly before us.

[25] On appeal, Parents first contend that the manner in which DCS investigated them and prosecuted the CHINS petitions from April 2024 onward was so egregious that it amounted to a violation of Parents’ substantive and procedural due-process rights. But Parents never made these arguments to the trial court despite ample opportunity. Instead, Parents constrained their arguments in the trial court to DCS's questionable decisions on how to prosecute the sex-offense allegations, which Parents asked the trial court to consider only under a theory of collateral estoppel. And the trial court agreed with Parents’ collateral-estoppel arguments after receiving substantial evidence.

[26] We decline to consider Parents’ due-process arguments, which are raised for the first time on appeal. See Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). We also note that Parents do not frame their due-process arguments around a theory of fundamental error, and thus any possibility of review under that doctrine is not properly before us. See, e.g., Applegate v. State, 230 N.E.3d 944, 952 (Ind. Ct. App. 2024), trans. denied. Finally, we agree with the State that Parents’ due-process arguments do not identify a specific legal standard that DCS purportedly violated, and, thus, their arguments also fail for not being supported by cogent reasoning. See Ind. Appellate Rule 46(A)(8)(a).

2. DCS presented sufficient evidence to support the trial court's adjudication of the Children as CHINS.

[27] We next consider Parents’ argument that the trial court's adjudication of the Children as CHINS is clearly erroneous. Again, the trial court adjudicated the Children to be CHINS based on the uncleanliness of Parents’ home, including that the home was infested with cockroaches; that the Children were routinely filthy, and two of them were covered with lice; and Parents’ inability or refusal to meet F.S.’s medical needs.

[28] The trial court's decision is supported by the record. DCS presented evidence that Parents’ home was not fit for Children; that C.S. and E.S. were covered in lice; that the Children were routinely filthy while in Parents’ care; and that Parents did little to nothing to support F.S.’s medical needs. Parents’ arguments to the contrary on appeal simply seek to have our Court reweigh the evidence, which we will not do.

[29] Still, Parents also assert that DCS failed to prove that they had the financial means necessary to provide for the Children's needs. Indiana Code section 31-34-1-1(1) (2023) states in relevant part that a child is a CHINS if:

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:

(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 ․

There is no question that this record supports the trial court's finding that Parents “need financial assistance to access needed services.” Appellants’ App. Vol. 3, p. 71. But the court's findings likewise make clear that Parents repeatedly failed to seek financial or other reasonable means to supply the Children with necessary shelter, care, and supervision. Again, Parents’ argument here is simply a request for our Court to reweigh the evidence, which we will not do. We affirm the trial court's adjudication that the Children are CHINS.

3. The trial court's dismissal of the sex-offense allegations against Father despite the State's December 2024 filing of criminal charges is clearly erroneous.

[30] On cross-appeal, DCS contends that the trial court erred when it granted Parents’ motions to dismiss the sex-offense allegations DCS raised in the new CHINS petitions.⁴ Insofar as the trial court's decision on Parents’ motions to dismiss represented an exclusion of evidence that barred DCS from relying on evidence DCS had failed to properly disclose to Parents prior to the September 2024 fact-finding hearing on DCS's initial CHINS petitions, the trial court made a difficult but reasonable decision, and we will not reconsider it.

[31] However, the trial court's decision on the motions to dismiss failed to consider substantial new evidence. While the doctrine of collateral estoppel applies to CHINS proceedings, our Supreme Court has made clear that that does not prevent DCS from discovering and relying on new evidence in subsequent proceedings. In re Eq. W, 124 N.E.3d 1201, 1211-12 (Ind. 2019). Indeed, throughout the proceedings on the new CHINS petitions, the trial court made clear to the parties that it would entertain any new evidence DCS might have obtained after the September 2024 fact-finding hearing in support of the sex-offense allegations.

[32] And DCS did present new, substantial evidence to the court that could not have been presented at the September fact-finding hearing. In particular, and in support of DCS's new CHINS petitions, Officer Edwards testified that she investigated D.S.’s mid-August disclosure into December 2024, well after the September fact-finding hearing on the initial petitions. She also testified that, following her submission of her report to the prosecutor's office, the State charged Father with Level 4 felony child molesting in case number 89D01-2412-F4-49 on December 30, which case remains pending.

[33] The trial court's dismissal of DCS's sex-offense allegations omits any reference, finding, or conclusion regarding the State's December 30 filing of the Level 4 felony child-molesting charge against Father. As a matter of law, the filing of a child-molesting charge against an adult is sufficient to adjudicate all the children who live in the home with that adult as CHINS.⁵ Ind. Code § 31-34-1-3(b)(1)(B) (2023). Further, DCS plainly relied on that statute in its new CHINS petitions; it never omitted its reliance on that statute when it amended those petitions; and DCS expressly argued to the court at the close of the fact-finding hearing on the new petitions in January 2025 that the filing of the criminal charge against Father was a sufficient basis, by itself, to adjudicate the Children to be CHINS.

[34] Accordingly, the December 30 criminal charge against Father was new evidence presented to the court during the fact-finding hearing on the new CHINS petitions that could not have been presented at the September hearing, and the trial court erred when it dismissed the sex-offense allegations notwithstanding that new evidence. We conclude that the trial court's omission of any mention of the pending child-molesting charge against Father is clearly erroneous, and we reverse the trial court's dismissal of the sex-offense allegations accordingly. We remand with instructions for the court to enter amended findings and conclusions regarding whether the Children are CHINS under Indiana Code section 31-34-1-3(b) and, if necessary, to amend the dispositional orders.

Conclusion

[35] For all of these reasons, we affirm the trial court's judgment in part, reverse it in part, and remand with instructions.

[36] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   The reference to a second JACY House interview appears to be a reference to Hennies's interview of D.S. at D.S.’s foster home.

2.   Parents separately objected on due process grounds to the court considering D.S.’s detention at that hearing, but they do not ask us to review the trial court's rejection of that position. Tr. Vol. 2, pp. 44-45; see also Appellants’ App. Vol. 3, p. 186.

3.   Although not in the record on appeal, we take judicial notice of the existence of Father's criminal case and its records. See Ind. Evidence Rule 201(a)(2)(C).

4.   DCS asserts our review of the trial court's decision on the motions to dismiss is de novo, but that is only true if the judgment is based on a paper record or undisputed facts. The trial court's judgment here was based on evidence presented at a contested hearing to the court, and therefore our review is under the clearly-erroneous standard. See GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001).

5.   Provided, of course, that DCS also demonstrates that any such children are in need of care, treatment, or rehabilitation that they are not receiving and which is unlikely to be provided or accepted without the coercive intervention of the court. Ind. Code § 31-34-1-3(b)(2) (2023).

Mathias, Judge.

Vaidik, J., and Pyle, J., concur.