IN RE: A.W. and J.W. (2026)

MEMORANDUM DECISION

[1] D.W. (“Father”) appeals the trial court's order adjudicating his children, A.W. and J.W. (“the Children”), as Children in Need of Services (“CHINS”). Father raises one issue for our review: whether the trial court abused its discretion when it allowed a recording of a telephone conversation between the parents to be played during the fact-finding hearing. We affirm.

Facts and Procedural History

[2] Father and C.P. (“Mother”)¹ are the parents of A.W., born in January 2014, and J.W., born in December 2015. Father and Mother lived together with the Children until they separated around 2017. Father filed a petition to establish paternity in 2018, and in 2019, the paternity court awarded primary physical custody to Mother with regular parenting time for Father. Father was also ordered to pay child support for the Children.

[3] Prior to the underlying events of the CHINS case, Father had several criminal convictions related to domestic violence and involving alcohol. In 2013, Father was convicted of domestic battery on Mother while she was pregnant with A.W. He had been drinking at the time of the offense. In April 2023, Father was charged with resisting law enforcement and domestic battery against the mother of another of his children, and he later pleaded guilty to resisting law enforcement and was given a suspended sentence. He later violated his probation by being charged with a new offense in November 2023 when he was charged with operating a vehicle while intoxicated. After pleading guilty to that offense, he was ordered to complete a substance abuse evaluation and all recommended treatment and complete community service. A probation revocation was filed because Father failed to complete the substance abuse assessment and treatment and failed to provide proof of completing his community service. Although Father did complete the substance abuse assessment, he denied he needed the recommended treatment and failed to complete it.

[4] In April 2024, Father asked Mother to file an agreement to terminate his child support obligation and told her it was to prevent his driver's license from being suspended. He had been ordered to pay $241 per week but was $14,000 in arrears at that time. After this request, Mother and Father filed an agreed entry discontinuing Father's child support obligation, which was signed by the trial court.

[5] In May 2024, the Indiana Department of Child Services (“DCS”) received a report alleging that the Children were victims of neglect based upon Mother's untreated mental health issues and concern regarding Mother's alcohol use. DCS also received information that Father was intoxicated while caring for the Children. An informal adjustment was opened but was not successful due to continued concerns about alcohol use by both parents and a lack of engagement in services by Mother.

[6] Over the next several months, there were multiple times when Mother or other family members had to retrieve the Children from visits with Father because of Father's behavior during the visits. In the summer of 2024, the Children's maternal aunt was notified by the mother of Father's other child that she should come pick up the Children. When the aunt arrived, she observed Father to be groggy, and he sounded intoxicated. Another time in the summer of 2024, Mother and her brother picked the Children up after the Children had spent the day at a waterpark with Father. Father had been texting Mother and was argumentative and hanging up when she tried to call him. Mother believed that Father had been drinking based upon his demeanor and language. On one of the phone calls, which was recorded, Father repeatedly used profanities toward Mother, threatened her, and would not tell her where the Children were. Mother was concerned about Father's ability to safely supervise the Children.

[7] In the fall of 2024, when the Children were on a visit with Father, he called Mother and was slurring his words and became agitated with her. Mother and her sister went to pick the Children up from Father's residence and found them sitting outside on the trunk of Father's car. It was cold, and the Children did not have jackets on; the door to Father's residence was locked, and he would not answer any phone calls or messages. On New Year's Day 2025, the Children were visiting Father, and he called Mother to come get them because he got into a physical altercation with his brother. When Mother and her sister arrived to get the Children, Father had a bloody nose and split lip and was stumbling, and the police and emergency workers were present.

[8] DCS filed the CHINS petition on February 7, 2025, alleging that Mother “ha[d] failed to provide the [C]hildren with a safe, stable, and appropriate living environment free from excessive alcohol use” and there were concerns of untreated mental health issues. Appellant's App. Vol. II pp. 26, 29. As to Father, DCS alleged that he had failed to “demonstrate[ ] an ability and willingness to appropriately parent the [C]hildren” and was “unable to ensure [the Children's] safety and well-being while in the care and custody” of Mother. Id. Father did not appear at the initial hearing for the CHINS case, and the trial court suspended Father's parenting time until he appeared in court and submitted to random drug screens that included screening for alcohol.

[9] On May 2, 2025, Mother filed an agreed entry in which she admitted that the Children were CHINS because she “need[ed] assistance providing a safe, stable and sober home environment, and therefore, the coercive intervention of the court [wa]s necessary.” Id. at 103–04. On June 4, 2025, the trial court adjudicated the Children as CHINS based on Mother's agreed entry and proceeded to disposition as to Mother. The trial court then conducted a fact-finding hearing with respect to allegations related to Father.

[10] At the hearing, family case manager U'Nique Steward (“FCM Steward”) testified that, Father did not initially respond to her during the first three weeks she was assigned the case. She put in referrals for random drug screens and supervised visits for Father and asked Father to participate in parenting education to help him understand the impact his behavior and communications have on Children, but he refused. FCM Steward recommended court intervention for Father because of the communication problems between him and Mother that caused trauma for the Children, and she believed that Father's engagement in services would assist in minimizing these behaviors and would benefit the Children.

[11] During the course of the CHINS case, Father had supervised visits with the Children. The visit facilitator, Calenia Dumas (“Dumas”), testified that Father often changed the time of or cancelled visits at the last minute, which upset the Children. When visits occurred, Dumas had to redirect Father because he would make inappropriate comments in front of the Children about the court proceedings or about Mother. On one visit, Dumas observed Father text Mother something derogatory about her name, and when Dumas tried to talk to Father about the situation, he told her it was a joke and “not a big deal.” Tr. Vol. 2 p. 38. The Children were aware of the text exchange as they were the ones who initially alerted Dumas to it. Dumas also offered to provide Fatherhood Engagement services to Father, and he declined, stating that he was a good father and did not need the services. After the texting incident, Father rejected Dumas's attempts to review the guidelines for visitation and told Dumas that he would request a new visitation facilitator. However, the referral stayed open, and Dumas continued to supervise visits.

[12] Guardian ad Litem TeQuaysha Tubbs (“the GAL”) testified that she recommended Father participate in services to assist in his parenting skills and to learn to effectively communicate with Mother. The GAL believed that the Children were mentally and emotionally endangered by the conflict between Mother and Father based on her conversations with and observations of the Children. The GAL further believed that the Children were physically endangered when they are with Father and he is drinking due to the prior incidents of violence.

[13] During Mother's testimony, counsel for DCS asked Mother about a video and audio recording that Mother's brother had taken during the incident where they went to pick up the Children after the day at the water park. Mother testified that it was the same recording she sent to DCS and agreed it was a “fair and accurate representation of the conversation” she had with Father that day. Id. at 60. Father objected, arguing that because there was no time stamp on the video, it could not be properly authenticated. The trial court responded that his objection was premature because the recording had only been identified at that point and not offered. Mother then stated that because her phone indicated the video would be deleted after one year, on July 21, 2025, this showed that the video was taken on July 21, 2024. Id. at 61. Mother then again confirmed that the recording accurately depicted the conversation between her and Father. DCS stated it was not offering the recording as an exhibit to be admitted into evidence but asked permission to play it in court. Father renewed his objection that there was no time stamp on the recording and it was not clear whether it had been edited. DCS responded that those considerations went to the “weight and not [the] admissibility” of the recording. Id. The trial court then allowed the recording to be played without formally admitting it into evidence. After the recording was played, Mother testified that you could hear the Children's voices in the background of the phone call that was recorded, and she further testified to what took place prior to the recording and why his behavior caused her concern. Father did not object to any of the testimony.

[14] On August 7, 2025, the trial court issued its order on the fact-finding hearing and adjudicated the Children to be CHINS as to Father. The trial court specifically found that “Father has a longstanding issue with violence and anger towards [M]other, which still manifests itself in the way he speaks to her, using profanities and debasing her.” Appellant's App. Vol. II p. 131. It further found that “[t]he volatility of the relationship between Father and Mother endangers the [C]hildren” and that “Father has a problem with alcohol use, and this endangers his children when they are in his care.” Id. Lastly, the trial court found that Father had been “offered assistance with these issues but has refused this assistance” and that “[c]oercive intervention of this [c]ourt is necessary to address the concerns related to [F]ather.” Id. Father now appeals.

Discussion and Decision

[15] Father argues that the trial court abused its discretion when it allowed DCS to play the recording during the fact-finding hearing because it was not properly authenticated, nor was it properly offered and admitted into evidence.² We review evidentiary challenges for an abuse of the trial court's discretion. Jones v. State, 218 N.E.3d 3, 9 (Ind. Ct. App. 2023) (citing Combs v. State, 168 N.E.3d 985, 990 (Ind. 2021), cert. denied), trans. denied. A trial court abuses its discretion only if its evidentiary decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Howard v. State, 236 N.E.3d 735, 742 (Ind. Ct. App. 2024) (citing Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024)).

[16] Although Father challenges the consideration of the recording and argues that it was not properly admitted into evidence, we do not have to make that determination as any playing of the recording was harmless. Indiana Appellate Rule 66(A) defines reversible error for our appellate courts.³ Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023). “When an appellate court must determine whether a non-constitutional error is harmless, Rule 66(A)’s ‘probable impact test’ controls.” Id. “Under this test, the party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below.” Id.

[17] Here, Father asserts that the recording “had a probable effect upon the fact finder.” Appellant's Br. p. 14. Besides this short assertion, Father does not elaborate how the playing of the recording affected or undermined the outcome of the proceedings. Considering the ample evidence presented to the trial court, we do not believe that the recording had any probable effect on the outcome of the CHINS proceedings. First, the trial court only made a short reference to the recording in its order, when it stated, “A video/audio clip was played in which [F]ather repeatedly used profanities towards [M]other and would not tell her where the [C]hildren were.” Appellant's App. Vol. II p. 129. Additionally, before and after the recording was played, Mother testified about the circumstances of the call she recorded and that Father seemed intoxicated and had repeatedly hung up on her and threatened her. Tr. Vol. 2 pp. 59–64. Father did not object to any of this testimony.

[18] Further, there was significant additional evidence describing other incidents where Father exhibited aggression and anger toward Mother and situations where Father was intoxicated or using alcohol while he was caring for the Children. Evidence was also presented that Father refused to participate in parenting education that was offered to assist him in understanding the impact his behaviors had on the Children. He also acted inappropriately during supervised visitation with the Children, and when Dumas attempted to talk to him about it, he refused. GAL Tubbs testified that the Children were emotionally harmed by the conflict between Father and Mother and physically endangered by Father's drinking and violent and aggressive actions. Because there was substantial other evidence supporting the CHINS adjudication, we conclude that the recording had no probable impact that undermined confidence in the outcome.

[19] Affirmed.

FOOTNOTES

1.   Mother does not participate in this appeal.

2.   Father does not challenge the sufficiency of the evidence and findings and conclusions supporting the trial court's CHINS adjudication under Indiana Code section 31-34-1-1(1). He has therefore waived any challenge to them. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (finding issue waived because the parent did not raise the challenge or present a cogent argument), trans. denied.

3.   Appellate Rule 66(A) states:No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal 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.

Foley, Judge.

Vaidik, J., and Altice, J., concur.