MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                            Oct 14 2016, 9:32 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
court except for the purpose of establishing                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
M.V.                                                      Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                         October 14, 2016
V.K. (Minor Child), Child in                              Court of Appeals Case No.
                                                          03A04-1604-JC-736
Need of Services,
                                                          Appeal from the Bartholomew
and                                                       Circuit Court
M.V. (Mother),                                            The Honorable Stephen R.
Appellant-Respondent,                                     Heimann, Judge
                                                          The Honorable Heather M. Mollo,
        v.                                                Magistrate
                                                          Trial Court Cause Nos.
The Indiana Department of                                 03C01-1505-JC-2515
                                                          03D01-1401-DR-31
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016    Page 1 of 16
      M.V. (Mother),
      Appellant-Respondent,

              v.

      J.K. (Father),
      Appellee-Petitioner




      Baker, Judge.


[1]   M.V. (Mother) appeals the trial court’s decision to combine the permanency

      and custody hearings for her daughter, V.K., following the dissolution of

      Mother’s marriage to J.K. (Father) and the adjudication of V.K. as a Child in

      Need of Services (CHINS). Mother argues that the process of holding a

      combined hearing deprived her of her due process rights, that the trial court

      erred when it restricted her parenting time, and that the Department of Child

      Services (DCS) prematurely closed the CHINS case. Finding no due process

      violations and no other error, we affirm.


                                                     Facts
[2]   V.K. was born on November 12, 2012. Mother and Father married on

      December 12, 2012. They later separated, and on January 3, 2014, Father filed

      a petition to dissolve the marriage. He requested that the court conduct a

      provisional hearing to determine custody issues. On February 21, 2014, a

      provisional hearing took place, and the court awarded Father “temporary care,


      Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 2 of 16
      custody, and control” of V.K. App. p. 41. Mother had visits every other

      weekend.


[3]   On May 17, 2015, Father asked a neighbor for a diaper and queried whether he

      could leave V.K. there while he attended a job interview. The neighbor noticed

      that the child’s clothes were soaked in urine and that she appeared to have a

      bad diaper rash. On May 18, 2015, Father approached the same neighbor and

      again left V.K. with the neighbor, even though the neighbor was unwilling to

      care for her while Father was at work. The neighbor observed that Father

      appeared to be under the influence when he brought the child over. The

      neighbor also noticed that V.K.’s diaper rash had worsened and that she was

      still in the same diaper from the previous day, and the neighbor took her to the

      emergency room. The hospital staff noted that the child had severe diaper rash

      that was likely the result of neglect.


[4]   V.K. was removed from Father’s home by DCS, and Father was arrested for

      neglect of a dependent. On May 20, 2015, DCS filed a petition alleging that

      V.K. was a CHINS due to the severity of the diaper rash, concerns for neglect,

      and concerns for substance use such that the child’s safety could not be ensured.

      On July 10, 2015, the trial court found that V.K. was a CHINS.


[5]   On September 22, 2015, the court issued a dispositional decree. It ordered

      Father to complete a substance use assessment and comply with any

      recommended treatment; it also ordered Father to participate in Fatherhood

      Engagement to address co-parenting, budgeting, transportation, and childcare,


      Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 3 of 16
      and to follow all recommendations. The court ordered Mother to participate in

      home based case management to address parenting, co-parenting, discipline,

      employment, and childcare, and to follow all recommendations; Mother was

      also ordered to complete a comprehensive evaluation to determine her need for

      substance use treatment and mental health treatment, and to complete any

      recommended treatment. The court also ordered both parents to, among other

      things, attend all scheduled visitations with V.K. and comply with all visitation

      rules and procedures, to submit to random drug screens within twenty-four

      hours of request or on demand, and to contact the family case manager every

      week to allow the manager to monitor compliance with the CHINS matter.


[6]   Following this order, DCS requested authorization for a trial home visit with

      Father, stating that Father had been participating in Fatherhood Engagement

      and completing treatment goals, that Father had completed a substance abuse

      assessment and no recommendations were noted for him, that Father had been

      participating in overnight visits with V.K. and those visits were progressing

      well, and that it would be in the best interests of the child for a trial home visit

      to begin with Father. On September 28, 2015, the trial court granted the

      request, and V.K. returned to Father’s home.


[7]   Meanwhile, on September 7, 2015, Mother and Father’s marriage was

      dissolved. The trial court did not determine custody at that time because of the

      ongoing CHINS case. On October 29, 2015, a periodic case review hearing

      took place in the CHINS case. The trial court noted that Father had complied

      with the child’s case plan but Mother had not. The trial court further noted that

      Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 4 of 16
      DCS and Father had concerns with Mother having unsupervised parenting time

      because of ongoing concerns for violence and Mother’s mental health. The trial

      court stated that it was appropriate to consider permanent placement of V.K.

      with Father; that Father had enhanced his ability to fulfill his parental

      obligations but that Mother had not; that Father had cooperated with DCS but

      that Mother could improve in her level of cooperation; and that Mother’s

      visitation with the child shall remain supervised.


[8]   On January 14 and February 19, 2016, pursuant to the agreement of the parties,

      a combined permanency hearing in the CHINS case and custody modification

      hearing in the dissolution case took place. On March 7, 2016, the trial court

      awarded sole legal and primary physical custody of V.K. to Father, and it

      awarded Mother four hours of supervised parenting time every other week. It

      entered the order in both the CHINS case and in the dissolution case. On

      March 16, 2016, the trial court granted DCS’ motion to close the CHINS

      proceeding. Mother now appeals.1




      1
        Mother is appealing the orders in the dissolution case and in the CHINS case. She served notice of appeal
      to Father, but her caption on her appellate brief reflected only an appeal of the CHINS case and omitted the
      dissolution case. Thus, although Father had a right to file a brief in this appeal to contest Mother’s
      arguments regarding custody in the dissolution case, we understand why he did not do so. Because we try to
      resolve CHINS and child custody cases as expeditiously as possible and because we are ruling in his favor,
      we have not stayed the appellate proceeding to afford Father the chance to file a brief.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016          Page 5 of 16
                                    Discussion and Decision
[9]    Mother argues that the process of holding a combined hearing deprived her of

       her due process rights, that the trial court erred when it restricted her parenting

       time, and that DCS prematurely closed the CHINS case.


                                       I. Combined Hearing
[10]   Mother first argues that she was deprived of her due process rights when the

       trial court combined the permanency and custody hearings and that the

       combined hearing created a high risk of error because it allowed DCS, rather

       than Father, to prove Father’s custody case.


[11]   Due process protections bar “state action that deprives a person of life, liberty,

       or property without a fair proceeding.” In re G.P., 4 N.E.3d 1158, 1165 (Ind.

       2014) (citation omitted). Due process protections are vital during all stages of

       CHINS proceedings “because every CHINS proceeding has potential to

       interfere with the rights of parents in the upbringing of their children.” Id.

       (internal quotation marks and citation omitted). 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 (quoting Mathews v. Eldridge, 424 U.S. 319, 333

       (1976)).


[12]   A party’s constitutional claim is considered waived when it is raised for the first

       time on appeal. Hite v. Vanderburgh Cnty. Office of Family and Children, 845

       N.E.2d 175, 180 (Ind. Ct. App. 2006). Our review of the record reveals that

       Mother never objected to the combined hearings based on a due process
       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 6 of 16
       argument; instead, she explicitly consented to it. When the trial court suggested

       a combined permanency and custody hearing, Mother’s counsel responded:

       “And I guess it seems to me that all of the evidence we have to present towards

       whether that permanency plan should be entered or not, would also be the

       evidence as far as a custody determination.” Tr. p. 39. When the trial court

       again asked, “So keep it all together?”, Mother’s counsel did not object. Id. at

       39-40. Thus, Mother’s argument regarding the effect of the combined hearing

       on her due process rights is waived on appeal.


[13]   Waiver notwithstanding, Mother’s assertion that the combined hearing

       deprived her of due process lacks merit. She provides no authority to support

       her contention that the court’s decision to combine the permanency and

       custody hearings was an error or that it created a high risk of error. See McBride

       v. Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 197 (Ind. Ct. App.

       2003) (finding no error when the court conducted a review hearing and a

       permanency hearing at the same time when the appellant provided no authority

       to support her contention that the simultaneous hearings denied her due

       process). Mother concedes “that the trial court had the authority to

       simultaneously exercise jurisdiction over both matters.” Appellant’s Br. p. 8.

       See also Ind. Code § 31-30-1-12(a) (a court with jurisdiction over a child custody

       or parenting time proceeding in a marriage dissolution “has concurrent original

       jurisdiction with the juvenile court for the purpose of modifying custody of a

       child who is under the jurisdiction of the juvenile court because the child is the

       subject of a child in need of services proceeding”). Moreover, Mother was


       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 7 of 16
       present and had counsel who represented her during the proceeding. Mother

       testified and, through counsel, cross-examined DCS’s and Father’s witnesses.

       We find, therefore, that Mother had the opportunity to be heard at a

       meaningful time and in a meaningful manner. We decline to reverse based on

       the trial court’s decision to hold the combined hearing.


                                          II. Parenting Time                   2




[14]   Mother also argues that the trial court erred when it restricted her parenting

       time and that it failed to make specific findings to support the restrictions.


[15]   A decision about parenting time requires us to give foremost consideration to

       the best interests of the child. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.

       2013). We will uphold a parenting time decision if the record reveals a rational

       basis for the trial court’s determination. Meisberger v. Bishop, 15 N.E.3d 653, 656

       (Ind. Ct. App. 2014). Indiana recognizes that a noncustodial parent’s right of

       visitation with his or her own children is a “‘precious privilege’” and that the

       “noncustodial parent is ‘generally entitled to reasonable visitation rights.’”

       Perkinson, 989 N.E.2d at 762 (quoting Duncan v. Duncan, 843 N.E.2d 966, 969

       (Ind. Ct. App. 2006)). Indiana Code section 31-17-4-1 provides that “[a] parent

       not granted custody of the child is entitled to reasonable parenting time rights

       unless the court finds, after a hearing, that parenting time by the noncustodial




       2
        We infer that Mother is appealing this order under the dissolution of marriage proceeding, not under the
       CHINS proceeding, which has been closed.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016          Page 8 of 16
       parent might endanger the child’s physical health or significantly impair the

       child's emotional development.” The trial court must make specific findings to

       support its parenting time order. Perkinson, 989 N.E.2d at 765. The party

       seeking “to restrict parenting time rights bears the burden of presenting

       evidence justifying such a restriction by the preponderance of the evidence.” Id.

       (internal quotation marks and citation omitted).


[16]   In the custody order, the trial court found that:


            Father successfully completed services with the Fatherhood Engagement
             program and a substance use assessment with no needs identified;
            Father demonstrated stability in his housing and employment and
             created a childcare plan for V.K. while he is working;
            Father demonstrated a child-focused lifestyle and a commitment to co-
             parenting;
            Father demonstrated that he can provide a safe, stable, and loving home
             to V.K.;
            Mother failed to complete a mental health assessment;
            Service providers observed that Mother has unrealistic views about
             V.K.’s development; difficulty regulating her emotions such that she can
             become so emotionally upset that she is distracted from parenting her
             child; and difficulty in understanding and processing information as
             evidenced by excessive voicemails left by Mother in which she continues
             to ask questions to previously answered questions; and
            Father has concerns about Mother’s judgment as it relates to V.K.’s well-
             being because prior to DCS involvement, during parenting time granted
             by a provisional order in the dissolution of marriage action, Mother
             stopped giving V.K. medication for MRSA and tried to physically
             squeeze the MRSA out, resulting in V.K. being hospitalized.

       App. p. 7-9.



       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 9 of 16
[17]   Mother contends that “it is not clear what standard the trial court applied in

       restricting Mother’s parenting time.” Appellant’s Br. p. 8. She also contends

       that the trial court failed to make specific findings to support the restriction, and

       that it erred when it did not specifically identify the standard set forth in

       Indiana Code section 31-17-4-1 and when it did not make specific findings that

       parenting time would endanger V.K.’s physical or mental health. The standard

       for denying or restricting parenting time “‘requires evidence establishing that

       visitation ‘would’ (not ‘might’) endanger or impair the physical or mental

       health of the child.’” Perkinson, 989 N.E.2d at 763 (quoting Stewart v. Stewart,

       521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988)).


[18]   We find that the trial court did identify the appropriate standard when it stated

       the following in the permanency order:

               20. The court finds that is [sic] shall be in the child’s best interest
               that custody be awarded to [Father].


               21. The Court finds by clear and convincing evidence that the
               best interests of the child, [V.K.], is substantially served by
               granting [Father] sole legal custody and primary physical custody
               of [V.K.]


[19]   App. p. 8-9. Further, it is apparent to us that the trial court applied the

       appropriate standard when restricting Mother’s parenting time, as evidenced by

       its stated concerns about Mother’s mental health, unwillingness to complete a

       mental health evaluation, inability to regulate her emotions, and decision to

       quit giving V.K. necessary medication, which resulted in V.K.’s hospitalization.


       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 10 of 16
       These findings indicate that the trial court was concerned that time spent with

       Mother would endanger or impair V.K.’s physical or mental health.


[20]   Mother further contends that the combined hearing resulted in DCS, rather

       than Father, proving that Mother’s parenting time should be restricted. We

       disagree. Father testified, was cross-examined, and served as a rebuttal witness

       during the hearing, providing his own evidence that, in addition to the evidence

       presented by DCS, allowed the trial court to come to its determination.

       Specifically, he testified about his concerns about Mother’s treatment of V.K.

       when V.K. had MRSA, Mother’s unrealistic views of what is age appropriate

       for a child, an occurrence of alleged domestic violence that took place while

       V.K. was visiting Mother, and Mother’s inappropriate behavior that resulted in

       a few visits being cut short, including one that involved the police. Further, we

       note that Father presented two voicemails left by Mother to Father as examples

       of Mother’s inability to conduct herself civilly and apparent unwillingness to co-

       parent:

               “Your [sic] not letting me talk to my daughter, to my daughter
               [sic]. I don’t have to go through [Family Case Manager] to do it.
               Okay. I don’t make a kid with [Family Case Manager], I made a
               kid with you unfortunately. It’s not on paper, you don’t have
               anything on paper. Okay, and whatever you have that’s hearsay,
               because that’s hearsay. You don’t have anything up to par, okay,
               and I’m also stated that in Indiana, in the State of Indiana, under
               the Indiana guidelines, I have different rights to talk to my child.
               I looked it up online, so I know what I’m talking about, and since
               you’re not letting me talk to my daughter, I don’t have to go
               through [Family Case Manager]. Okay, I didn’t make a kid with
               [Family Case Manager], I made a kid with you unfortunately,

       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 11 of 16
               and you wanna act like a f**kin’ d**k-wad? And I can be the
               biggest f**kin b***h you’ve ever met and I’m not joking, You
               don’t wanna let me be around my child? Well (inaudible), but
               you have? That’s fine, but you know what? I’m stronger now,
               and I’m a lot better now than I ever was before and you are not
               going to break me, [Father].”


               “I really don’t have anything to say to you, I just wanted to talk
               to my daughter, okay. And since you wanna be so f**kin’ selfish
               and keep her all to yourself, on Thursday, I have every bit of
               right to her, just as much as you do, and I’m not talking to you,
               because all [I] have is lies, and I’m tired of it. I have (inaudible)
               to you, and I have nothing more to say to you. Go be happy
               with your f**king n*****, I really don’t give a f**k. But she’s not
               gonna be around my child. . . .”


       Tr. p. 150-52. We find that Father’s evidence alone would have been sufficient

       to show by a preponderance of the evidence that Mother’s parenting time

       restriction is warranted. The evidence presented by DCS merely corroborated

       Father’s evidence. In sum, we find the evidence sufficient to support the trial

       court’s restriction of Mother’s parenting time.


                                 IV. Closure of CHINS Case
[21]   Finally, Mother argues that DCS prematurely terminated services when it

       closed the CHINS case on February 19, 2016, and that the termination

       “resulted in the denial of due process.” Appellant’s Br. at 11. She argues that

       no impending deadlines or ongoing permanency concerns necessitated the

       termination of services to Mother at that time because the trial court recognized

       that a permanency hearing was not required until May 2016.


       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 12 of 16
[22]   The purpose of a CHINS adjudication is to protect children, not punish parents.

       In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). The “policy and purpose of the

       CHINS statutory scheme is not to remove children from their parents without

       giving the parents a reasonable opportunity to participate.” In re J.B., --- N.E.3d

       ---, No. 20A05—1510—JC—1612, 2016 WL 4728565, at *4 (Ind. Ct. App.

       2016). The CHINS adjudication does not establish culpability on the part of a

       particular parent. In re N.E., 919 N.E.2d at 105. Because a CHINS

       determination establishes the status of a child alone, a separate analysis as to

       each parent is not required in the CHINS determination stage. Id. at 106. The

       resolution of a juvenile proceeding focuses on the best interests of the child. Id.

       “When the juvenile court finds that the objectives of the dispositional decree

       have been met, the court shall discharge the child and the child’s parent,

       guardian, or custodian.” Ind. Code § 31-34-21-11.


[23]   On May 28, 2015, Mother was referred for home based case management to

       address any necessary parenting education that may have needed to be

       completed; Mother did not commit to participating in the program. On

       November 2, 2015, Mother was referred for home based therapy and at the time

       of the January 14, 2016, hearing, she had only participated in two therapy

       sessions. On September 14, 2015, she completed a substance abuse assessment

       and was not recommended for any additional services; however, the provider

       indicated that Mother could benefit from mental health services in order to help

       develop positive coping skills. On October 2, 2015, Mother’s family case

       manager referred Mother for psychological services. Mother was scheduled for


       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 13 of 16
       an evaluation on November 6, 2015, but she cancelled that appointment and

       refused to reschedule due to the provider’s distance from her. Mother’s family

       case manager then referred Mother to a provider closer to Mother, and an

       evaluation was scheduled for December 22, 2015. Mother declined to attend,

       saying that she did not have transportation. Mother’s family case manager

       advised Mother that Mother’s therapist could transport her to her appointment

       if transportation was a barrier. Mother also reported to her family case

       manager that she was not willing to do that evaluation at times.


[24]   Given these facts, we strongly disagree with Mother’s assertion that “[t]his was

       not a circumstance in which Mother blatantly and repeatedly refused to

       participate in services” but instead was “a situation where DCS required the

       service, did not offer it, and then cited Mother’s failure to undergo the

       evaluation as a reason why Father should be awarded custody and Mother’s

       parenting time should be restricted.” Appellant’s Br. p. 11. At the October 29,

       2015, review hearing, the trial court noted that Mother “has fluctuated as to her

       willingness to participate” in a mental health evaluation and that Mother “has

       questioned the need despite the treatment team seeing significant mental health

       needs.” App. p. 31. Mother received numerous opportunities long before the

       February 19, 2016, hearing, to participate in the services, and the record is clear

       that Mother’s family case manager was responsive to her concerns about the

       location of the services and transportation and made appropriate referrals and

       suggestions to overcome those obstacles.




       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 14 of 16
[25]   Thus, over the course of nine months, Mother had a reasonable opportunity to

       participate in all court-ordered services. She failed to do so. She cannot now

       credibly complain that she did not have a chance. Compare with In re J.B.

       (reversing the part of the CHINS court’s order that discharged the parties and

       terminated the CHINS case because the parents did not have a reasonable

       opportunity to participate in the CHINS adjudication when the trial court

       granted DCS’s request to close the CHINS case, with the CHINS finding intact,

       before a dispositional decree was entered and before Mother could participate

       in services). We find no error on the part of DCS, nor do we find that the

       termination of services resulted in any deprivation of due process rights

       because, as discussed above, Mother had the opportunity to be heard at a

       meaningful time and in a meaningful manner.


[26]   Moreover, Father complied with the trial court’s orders. The trial court found

       that Father demonstrated stability in his housing and employment, that Father

       created a strong plan of care of his daughter while he is working, and that

       Father showed a child-focused lifestyle and a commitment to co-parenting. In

       short, the trial court found that Father demonstrated that he can provide a safe,

       stable, and loving home to V.K. Under these circumstances, the trial court is

       required to close the CHINS case. See Ind. Code § 31-34-21-11. Therefore,

       regardless of Mother’s shortcomings, the trial court did not err in finding that




       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016   Page 15 of 16
       the objectives of the dispositional decree were met and in discharging the

       CHINS case.3


[27]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Najam, J., concur.




       3
        In Mother’s final argument, she complains that the trial court’s order severely limited the amount of time
       she and V.K. could spend together and prevents them from spending any holidays together. We note that,
       pursuant to the child custody modification statutes, Mother is free to petition the court to modify the custody
       order in the dissolution case.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016            Page 16 of 16
