IN RE: K.J. (Minor Child) (2023)

MEMORANDUM DECISION

STATEMENT OF THE CASE

[1] Appellant-Respondent, W.J. (Father), appeals the trial court's Order adjudicating his minor child, K.S. (Child), as a child in need of services (CHINS).

[2] We affirm.

ISSUES

[3] Father presents this court with one issue, which we restate as the following two issues:

(1) Whether the trial court's CHINS determination is clearly erroneous; and

(2) Whether Father's due process rights were violated when Child was removed after the dispositional hearing.

FACTS AND PROCEDURAL HISTORY

[4] Father and J.A. (Mother),¹ (collectively, Parents), are the biological parents of Child, born on July 25, 2022, and Child's older sibling (Sibling), born approximately one year before Child. The Indiana Department of Child Services (DCS) became involved with this family when Sibling was removed from Parents’ care because his umbilical cord blood tested positive for methamphetamine and because of concerns of domestic violence between Parents. The CHINS proceedings relating to Sibling were ongoing at the time of Child's birth and remained ongoing throughout the instant proceedings. Sibling was never returned to Parents’ care. Prior to Child's birth, Parents did not engage in their court-ordered CHINS services in Sibling's case, they missed several drug screens, and they consistently tested positive for THC. Father tested positive for THC on July 19, 2022, less than a week before Child's birth.

[5] On July 26, 2022, while Mother and Child were still at the hospital following Child's birth, DCS received a report that Child's umbilical cord blood had tested positive for THC. DCS’ Family Case Manager (FCM) investigated by interviewing Mother, who admitted to FCM that she had ingested THC products during her pregnancy with Child. DCS initially determined that an in-home CHINS was appropriate for the family, with referrals being entered for family preservation services, including for home-based case management and drop-in visits to check on Child's well-being. However, when a home-based case worker went to initiate services with Parents, they refused to participate until they were court-ordered to do so. On August 15, 2022, the trial court removed Child from Parents’ care because Child's safety could not be monitored.

[6] On August 26, 2022, DCS filed a petition alleging that Child is a CHINS. On September 2, 2022, the trial court held a detention and initial hearing on the CHINS petition, after which it appointed counsel for each Parent and CASA for Child. The trial court ordered Parents to comply with DCS services, to allow DCS drop-ins, and to keep controlled substances and domestic violence away from Child. Thereafter, Parents engaged in family preservation services. On September 6, 2022, Child was returned to Parents’ care with a trial home visit.

[7] On October 17, 2022, the trial court held a fact-finding hearing on the CHINS petition, which Parents contested. Both Parents had refused a drug screen one week before the fact-finding hearing. Mother had just begun IOP substance abuse treatment, and Father had not yet begun addressing his substance abuse one-on-one with a recovery coach. On November 10, 2022, the trial court entered its Order adjudicating Child a CHINS. The trial court entered findings of fact consistent with the aforementioned facts. The trial court concluded that DCS had proven by a preponderance of the evidence that Child was a CHINS pursuant to Indiana Code section 31-34-1-10 pertaining to a child born with a controlled substance in his blood.

[8] On November 29, 2022, the trial court held a dispositional hearing. At the beginning of the testimony by DCS’ first witness, Child's and Sibling's Permanency FCM, DCS asked whether there had been developments in the case that necessitated Child's removal from Parents’ care. Father objected on the basis that he had no notice that Child's placement would be at issue, which he contended violated his right to due process. The trial court overruled Father's objection and heard evidence regarding DCS’ recommendation for Child's placement. The evidence reflected that Parents’ participation in services had declined. On November 5, 2022, one of Father's relatives had thrown a rock through a window of Parents’ home while Child was present, which scared Mother and caused her to stay elsewhere with Child for a time. On November 7, 2022, during a Family/Team meeting, Father became irate with DCS service providers and employees and cursed at them. Father's conduct caused the meeting to be terminated early. Also on November 7, 2022, DCS received a report that Father had an active methamphetamine lab at the home where he lived with Child and Mother. When DCS and law enforcement arrived to investigate, Father again became irate and made obscene gestures and comments to DCS staff and law enforcements officers. Mother grabbed Father by his beard in an attempt to dissuade him from this conduct, an effort which was unsuccessful. Child was present while this occurred. After a November 15, 2022, court date and while Child was present, Father became irate in the courthouse, screamed derogatory sexual remarks at court staff, and argued with Mother. On November 18, 2022, Child and Parents tested positive for THC. Neither Parent could explain how Child had tested positive. On November 27, 2022, Father was arrested for intimidating Mother during an incident wherein he told Mother that he was going to “knock [Mother] the f*** out[.]” (Transcript p. 110). A no-contact order was entered in the intimidation case, but Mother had informed DCS that she and Father planned to stay together after the no-contact order expired. FCM, who had been with the family since July 26, 2022, recommended Child's placement outside the home based on on-going concerns for Child's safety due to domestic violence and substance abuse in the home.

[9] During the dispositional hearing, DCS offered into evidence drug screen results for Parents and Child that had just been received and a DCS risk and safety assessment that had just been completed. Father objected that these exhibits had not been disclosed prior to the hearing. The trial court overruled these objections but had copies printed out of the drug screen results and paused the hearing so that Father could examine them. The trial court also ensured that copies of the risk and safety assessment were distributed prior to testimony being received about them. At the conclusion of the dispositional hearing, the trial court ordered that Child be placed outside Parents’ home based on safety concerns for Child due to “recent events,” not due to the state of their home or their lack of income. (Tr. p. 121). At the conclusion of the dispositional hearing, the trial court scheduled a second hearing on the issue of Child's placement for December 1, 2022.

[10] On December 1, 2022, the trial court held the second hearing on Child's placement. Father objected to the incorporation of the evidence from the dispositional hearing into the detention hearing, and the drug screen results and risk and safety assessment exhibits from the dispositional hearing were admitted at the second placement hearing. The trial court heard evidence from a law enforcement officer who was present for the November 27, 2022, incident that led to Father's intimidation charge. The officer confirmed that he had heard Father's threat to knock out Mother, and he testified that there was an overwhelming smell of burnt marijuana emanating from Parents’ home when Child was also present. FCM and DCS service providers testified regarding Parents’ decreased services participation, and Child's foster care provider testified that, after receiving Child into her care on November 29, 2022, she had noted that Child was unwashed and smelled, Child had bruises under one eye and on both ears, and that there was crusting behind both of Child's ears. At the conclusion of the detention hearing, the trial court continued Child's placement outside Parents’ home.

[11] Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. CHINS Finding

A. Standard of Review

[12] Father challenges the evidence supporting the trial court's Order adjudicating Child a CHINS. Our standard of review of a trial court's CHINS determination is well-settled: we do not reweigh the evidence or judge witness credibility. In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). We consider only the evidence which supports the trial court's decision and the reasonable inferences to be drawn from that evidence. Id. at 1287. In addition, where, as here, the trial court has entered findings of fact and conclusions of law, we exercise a two-tiered review. Matter of K.P.G., 99 N.E.3d 677, 681 (Ind. Ct. App. 2018), trans. denied. First, we consider whether the evidence supports the findings, and, second, we determine whether the findings support the judgment. Id. Father does not challenge any of the trial court's factual findings, and, therefore, we accept those findings as true. S.S., 120 N.E.3d 605, 609 n.2 (Ind. Ct. App. 2019). We will reverse a trial court's CHINS determination only if it is clearly erroneous and a review of the record leaves us firmly convinced that a mistake was made. K.P.G., 99 N.E.3d at 681. A CHINS determination is clearly erroneous “if the record facts do not support the findings or if it applies the wrong legal standard to properly found facts.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997) (internal quotation marks omitted). DCS was required to prove that Child was a CHINS by a preponderance of the evidence. See Ind. Code § 31-34-12-3.

B. Evidence Supporting CHINS Order

[13] In its CHINS petition, DCS alleged that Child was a CHINS pursuant to Indiana Code section 31-34-1-1, the general neglect statute, and pursuant to Indiana Code section 31-34-1-10, which provides that a child is a CHINS if he is born with “any amount, including a trace amount, of a controlled substance ․ in the child's body, including in the child's blood” and the “child needs care, treatment, or rehabilitation that ․ is unlikely to be provided or accepted without the coercive intervention of the court.” The trial court concluded that Child was a CHINS based only on the controlled substance CHINS statute, not under the general neglect statute. On appeal, Father does not contend that there was insufficient evidence that Child's umbilical cord blood tested positive for THC at birth. Therefore, we will concentrate our analysis on whether DCS proved that the trial court's coercive intervention was necessary to meet Child's needs.

[14] Our supreme court has recognized that the purpose of a CHINS proceeding is to protect children, not punish parents. In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). A CHINS proceeding focuses on the status of the child, and, therefore, “a separate analysis as to each parent is not required in the CHINS determination stage.” Id. at 105-06. The CHINS statute's requirement that DCS prove that the child needs care that is unlikely to be provided or accepted without the coercive intervention of the court “guards against unwarranted State interference in family life[.]” In re S.D., 2 N.E.3d at 1287. Regarding the determination of whether the court's coercive intervention is necessary, “the question is whether the parents must be coerced into providing or accepting necessary treatment for their child.” Matter of E.K., 83 N.E.3d 1256, 1262 (Ind. Ct. App. 2017), trans. denied. In assessing whether a child is a CHINS, our supreme court has emphasized that a trial court “should consider the family's condition not just when the case was filed, but also when it is heard.” Id. at 1261 (citing In re D.J. v Ind. Dep't of Child Servs., 68 N.E.3d 574, 580-81 (Ind. 2017)).

[15] Father's first challenge to the evidence is that DCS failed to show that Child was “seriously impaired or seriously endangered” as the result of Parents’ conduct, as required by Indiana Code section 31-34-1-1, the general neglect statute. However, as we have already observed, the trial court's CHINS determination was not based upon section 31-34-1-1. Thus, Father's argument on this point is not relevant to our analysis.

[16] Father also cites two cases issued by this court reversing CHINS adjudications for lack of evidence. The first is In re A.R., 121 N.E.3d 598, 600-01 (Ind. Ct. App. 2019), a case wherein four children were declared CHINS based on their mother's homelessness, her methamphetamine abuse, and the fact that the fourth child's umbilical cord blood had tested positive for methamphetamine at birth. The mother had voluntarily undergone substance abuse counseling without a DCS referral, did not test positive for any controlled substance after the CHINS petition was filed, and had addressed her employment and housing issues. Id. at 603-05. Given this evidence and the consideration we must afford the circumstances at the time of the fact-finding hearing, this court concluded that there was insufficient evidence that the mother's children needed care they were unlikely to receive absent the coercive intervention of the court. Id. While we agree with Father's contention that A.R. shows that DCS must present evidence above and beyond the simple fact that Child's umbilical cord blood tested positive for marijuana, Father's case is factually distinguishable from A.R. because at the time of the fact-finding in this matter, Parents were not compliant with their services in Sibling's CHINS proceedings, Parents would not engage in family preservation services in the instant case until a court order was issued, Father had not yet begun substance abuse treatment, Mother had just begun IOP, and, although they had submitted some clean screens after Child's CHINS petition was filed, both Parents refused a drug screen one week before the fact-finding hearing.

[17] Neither do we find Father's citation to D.S. v. Indiana Department of Child Services, 150 N.E.3d 292 (Ind. Ct. App. 2020), to be persuasive. We reversed in D.S. because there was no evidence that the mother had ingested marijuana in her child's presence or that DCS had ever perceived the mother to be under the influence. Id. at 296. In addition, there was a safety plan in place for the mother to place D.S. outside the home with a sober caregiver if she wanted to ingest marijuana. Id. However, we also find D.S. to be factually distinguishable from the case at hand because the D.S. CHINS petition was based on an allegation that the mother had “seriously endangered” her child pursuant to the general neglect statute, not the controlled substance CHINS statute, D.S. was not a newborn, as is the case here, and there was no safety plan for Child if Parents wished to ingest marijuana. Id. at 294-95. Because these are the only arguments Father offers on appeal ² and he has failed to persuade us that the trial court's findings are insufficient to support its CHINS determination, we conclude that the trial court's CHINS order is not clearly erroneous.

III. Due Process

[18] Father briefly argues that his due process rights “were violated by conducting a detention/removal hearing without notice or petition” because the trial court changed Child's placement after the dispositional hearing. (Appellant's Br. p. 8). Although Father's argument is not well-developed, we will briefly address it. “Due process requires ‘the opportunity to be heard at a meaningful time and in a meaningful manner.’ ” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). The right to due process applies to all stages of a CHINS proceeding. Matter of Eq.W., 124 N.E.3d 1201, 1209 (Ind. 2019). The due process afforded in a CHINS proceeding turns on the balancing of the factors identified in Mathews, namely, “(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.” In re K.D., 962 N.E.2d at 1257. Our supreme court has recognized that

[t]he private interest affected by the proceeding is substantial—a parent's interest in the care, custody, and control of his or her child. And the State's interest in protecting the welfare of a child is also substantial. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DCS's actions and the trial court's actions.

In re G.P., 954 N.E.2d 910, 917-18 (Ind. 2011). Accordingly, we will focus our analysis on whether the chosen procedure in this case created a risk of error in the placement determination.

[19] Here, at the November 29, 2022, dispositional hearing, the trial court heard evidence and considered the issue of Child's placement outside Parents’ home even though DCS had not filed any formal separate petition prior to the hearing. The trial court then held a second evidentiary hearing two days later on December 1, 2022, on the issue of Child's placement. Father baldly asserts that this procedure violated his due process rights. However, as the State correctly points out, the CHINS statute directs the trial court to consider a number of issues at the dispositional hearing, including “[a]lternatives for the care, treatment, rehabilitation, or placement of the child[,]” and the statute permits the trial court to enter a dispositional decree removing a child from the parental home and placing the child in another home. I.C. §§ 31-34-19-1(a)(1); -20-1(a)(3). We also observe that, if DCS had removed Child on November 29, 2022, under Indiana Code section 31-34-2-3, which provides for emergency removal without a court order or prior notice to parents, the trial court would have been mandated to hold a detention hearing within forty-eight hours, essentially the same procedure followed here. See I.C. § 31-34-5-1(a). At the dispositional hearing, DCS clearly explained its bases for seeking Child's removal, and it presented the same rationales at the December 1, 2022, evidentiary hearing. Father was present at the dispositional hearing and at the December 1, 2022, hearing where he was represented by counsel, who cross-examined DCS’ witnesses at both hearings. The drug screen results admitted at the dispositional hearing and the safety and risk assessment DCS questioned FCM about at the dispositional hearing were both admitted at the second evidentiary hearing.

[20] Father does not explain precisely how the chosen procedure created any risk of error in the trial court's placement decision. We conclude that, were we to reverse in this case, where Father received the same amount of notice and opportunity to be heard as he would have been entitled to under the emergency detention statute, we would be elevating form over substance. Concluding that the chosen procedure did not inject a risk of error into Child's placement determination, we do not disturb the trial court's dispositional order changing Child's placement.

CONCLUSION

[21] Based on the foregoing, we hold that the trial court's CHINS Order was not clearly erroneous and that changing Child's placement at the dispositional hearing did not violate Father's due process rights.

[22] Affirmed.

FOOTNOTES

1.   Mother does not participate in the instant appeal.

2.   Inasmuch as Father purports to challenge the evidence supporting the trial court's dispositional order and Child's placement outside the home, he does not support his argument with relevant legal authority or citations to the evidence presented at the dispositional hearing. Therefore, he has waived that claim. Ind. Appellate Rule 46(A)(8); Martin v. Hunt, 130 N.E.3d 135, 137 (Ind. Ct. App. 2019) (holding that “[f]ailure to present a cogent argument results in waiver of the issue on appeal.”).

Riley, Judge.

[23] Bradford, J. and Weissmann, J. concur