MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       Jan 30 2020, 9:59 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                         January 30, 2020

L.J.Y. (Minor Child),                                     Court of Appeals Case No.
                                                          19A-JC-1652
And
                                                          Appeal from the Allen Superior
J.Y. (Father),                                            Court
Appellant-Respondent,                                     The Honorable Charles F. Pratt,
                                                          Judge
        v.                                                The Honorable Lori K. Morgan,
                                                          Magistrate
The Indiana Department of                                 The Honorable Sherry A. Hartzler,
Child Services,                                           Magistrate
Appellee-Petitioner.                                      Trial Court Cause No.
                                                          02D08-1809-JC-493



Riley, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020                Page 1 of 27
                                    STATEMENT OF THE CASE
[1]   Appellant-Respondent, J.Y. (Father), appeals the trial court’s adjudication of

      his minor child, L.J.Y. (Child) as a Child in Need of Services (CHINS). 1


[2]   We affirm.


                                                        ISSUES
[3]   Father presents three issues on appeal, which we restate as the following four

      issues:


                 (1) Whether the trial court erred by conducting the factfinding hearing

                      outside the statutory timeframe;


                 (2) Whether the trial court erred by failing to complete the dispositional

                      hearing within the timeframe mandated by Indiana statutes;


                 (3) Whether the trial court abused its discretion by granting the

                      Appellee-Petitioner, Department of Child Services’ (DCS) motion to

                      have the CHINS petition conform to the evidence; and


                 (4) Whether the evidence was sufficient to support the trial court’s

                      CHINS adjudication.




      1
          J.K., Child’s mother (Mother), does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 2 of 27
                      FACTS AND PROCEDURAL HISTORY
[4]   Child was born on May 30, 2002. When Child was about four years old, she

      was removed from Mother’s care due to neglect, and was placed with Father,

      and S.M. (Stepmother) who reside in Fort Wayne, Indiana.


[5]   Sometime in May 2018 or the first day of her summer break, Child was making

      breakfast in the kitchen. She then left the home in order to get syrup from her

      grandmother’s house which was nearby, however, no one was at her

      grandmother’s home, so she returned home. When she got home, Father asked

      her where she had been. A verbal altercation ensued, and Father “grabbed

      [Child] by her hair, swung her around on the floor, and hit her in the head”

      about “seven or eight times.” (Appellant’s App. Vol. II, p. 46, Tr. Vol. II, p.

      71). Child blacked out for a few seconds after being struck in the head.


[6]   On August 22, 2018, DCS received its first report regarding a heated argument

      between Father and Child relating to Child’s boyfriend. On August 28, 2018,

      family case manager Jennifer Medina (FCM Medina), interviewed Father

      regarding the allegation. Father expressed his frustration regarding Child,

      claiming that she was sneaking out of the house at 2:00 a.m. “to be with her

      boyfriend.” (Appellant’s App. Vol. II, p. 26). On the same day, FCM Medina

      interviewed Child. Child stated that Father had “physically abused her in May

      of 2018 by pulling her hair and hitting her in the head.” (Appellant’s App. Vol.

      II, p. 25). Child stated that Father would call her a “cunt and bitch” and he

      talked ill of her Mother. (Appellant’s App. Vol. II, p. 27). Child stated that

      Father’s verbal abuse had her to “the point where she wants to” harm herself.
      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 3 of 27
      (Appellant’s App. Vol. II, p. 25). During the interview, FCM Medina did not

      observe any marks, bruises, or welts on Child.


[7]   On September 12, 2018, Child missed part of her school day since she had

      issues with her birth control and was supposed to see her gynecologist.

      However, after her appointment, Child was expected to go to school. Father

      drove Child to the appointment. On their way, Child asked Father whether she

      could go with her sister and two nephews to the pumpkin patch. Father then

      yelled at Child and stated that she never wanted to do things with him, and he

      expressed concern that she was not home much. They went to the appointment

      and when the appointment was over, they returned to the car. On their ride to

      Child’s school, Child stated, “why is my life everything you want.” (Tr. Vol. II,

      p. 75). That statement “set [Father] off.” (Tr. Vol. II, p. 75). Out of anger,

      Father took his seatbelt off and “kind of swerved the car and lunged at [Child].”

      (Tr. Vol. II, p. 75). The vehicle that was driving behind drove up beside

      Father’s car and the occupants stated that they were calling the police. When

      the car stopped, Child attempted to get out of the car, however, Father

      threatened to beat Child, so she remained in the car. When the police arrived,

      Father got out of the car, and Child locked the door. The police convinced

      Child to open the door and they later transported her to school.


[8]   On September 19, 2018, Child’s school contacted DCS to report that Child had

      a “bruise on her thigh.” (Appellant’s App. Vol. II, p. 25). Child informed

      FCM Medina that Father had punched her on her right thigh “because she

      [had] asked for help with her homework.” (Appellant’s App. Vol. II, p. 25).

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 4 of 27
      FCM Medina observed the “bruise to be [greenish-yellow] in color[,] and was

      large and round.” (Appellant’s App. Vol. II, pp. 25-26). FCM Medina took

      pictures of the bruise in the bathroom. FCM Medina then interviewed Father

      over the phone. Father denied physically abusing Child, but he claimed that he

      had verbally scolded her in front of Stepmother since Child had sought last

      minute help with an eight-page assignment which was due the next day. Father

      added that his children, including Child, knew the “system and [knew] what to

      say to get him in trouble” with DCS. (Appellant’s App. Vol. II, p. 26). When

      FCM Medina requested that Father pick up Child from school due to the

      incident, Father refused. Prior to suspending the phone call, Father blurted,

      “You know what, I don’t even want her back in my home, this is enough, just

      keep her.” (Appellant’s App. Vol. II, p. 26). Another FCM contacted Father to

      confirm that he did not want Child in his home. Father was “extremely irate []

      and throughout the call” he “was yelling more than talking.” (Appellant’s App.

      Vol. II, p. 26). When the FCM conveyed that Father’s yelling was needless,

      Father hung up. Since Father refused to pick up Child from school, FCM

      Medina transported Child to the Youth Services Center, and she was

      subsequently placed in foster care.


[9]   On September 21, 2018, the trial court held a preliminary hearing regarding

      allegations of Father’s neglect and physical abuse to Child. Father and

      Stepmother were present for that hearing. DCS presented evidence that it had

      received three reports relating to Father’s physical abuse of Child. First, DCS

      claimed that Child had reported that Father had “grabbed [her] by the hair,”


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 5 of 27
       swung her “around on the floor” and “hit her in the head.” (Tr. Vol. II, p. 7).

       DCS added that on September 12, 2018, Father “struck” Child on her thigh

       causing her to have a bruise. (Tr. Vol. II, p. 7). DCS also presented pictures of

       the bruise. DCS further stated that Child had “reported being afraid to go back

       home due to physical . . . abuse in the home” and that she was having

       “ideations [] of self-harm.” (Tr. Vol. II, p. 7).


[10]   The trial court found that probable cause existed, found that Child was a

       CHINS, and it authorized DCS to file a CHINS petition. DCS served Father

       with the CHINS petition in court that day. After Father denied the allegations,

       the trial court ordered Child to remain in foster care and participate in a clinical

       assessment. Father was then directed to refrain from criminal activity, maintain

       a clean and stable home, cooperate with all caseworkers, attend all meetings,

       and participate in various services. In response to the court ordered services,

       Father stated


               Well Your Honor I’ve been involved with DCS for about 20
               years so I doubt that any of the services that they can provide or
               suggest[ed] to me are going to help because I’ve probably done
               every single one of their classes and to add a little bit more on top
               of that[,] the majority of those classes have asked me to come
               back and instruct their classes.


       (Tr. Vol. II, p. 13). During further discussion with the trial court, Father’s voice

       was “escalating in tone,” and it progressed to “an angry loud tone.” (Tr. Vol.

       II, p. 15). Father’s final words were, “You’ve railroaded my entire life[,] 20



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 6 of 27
       years of my fuckin life man.” (Tr. Vol. II, p. 15). At that point, the trial court

       adjourned the hearing. 2


[11]   On October 15, 2018, the trial court conducted an additional initial hearing.

       Child, GAL Jennifer Young (GAL Young), Father’s attorney, Stepmother, and

       Stepmother’s counsel were present. Initially, Father was present, but he was

       escorted out by security since “he was agitated . . . and being loud.” (Tr. Vol.

       II, p. 17). During the hearing, DCS requested and was granted leave to amend

       its CHINS petition to include Stepmother as a party since she was also Child’s

       caregiver. GAL Young then reported that Child was “doing really well” in

       foster care and “there were no issues or concerns.” (Tr. Vol. II, p. 20). At the

       close of the hearing, the trial court discussed upcoming hearing dates.

       Everyone agreed that an additional initial hearing was necessary and was

       scheduled for November 27, 2018. Also, the trial court scheduled a factfinding

       hearing for January 10, 2019. 3 None of the parties, including Father, objected

       or otherwise stated the factfinding hearing was scheduled past the sixty-day

       statutory timeframe.


[12]   On November 19, 2018, DCS filed a Second Amended CHINS petition. The

       material facts pertaining to Father’s, Mother’s, and Stepmother’s neglect were



       2
        The record shows that on October 12, 2018, DCS amended the CHINS petition and included facts
       pertaining to Mother’s neglect of Child.
       3
         According to Indiana Code section 31-34-11-1(a), a factfinding hearing should not be scheduled more than
       sixty days after the CHINS petition has been filed. Indiana Code section 31-34-11-1(b) further provides that
       the trial court may extend the time to complete the factfinding hearing by an additional sixty days if all the
       parties consent to further time.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020                   Page 7 of 27
       included in that petition. On November 27, 2018, during the hearing, the trial

       court realized that scheduling a factfinding in January 2019 would be outside

       the statutory timeframe mandated under Indiana Code section 31-34-11-1(a).

       Believing that the parties had consented to the scheduling of the factfinding

       hearing outside the sixty-day statutory timeframe, the trial court questioned

       whether “the parties have waived the [sixty-day] requirement.” (Tr. Vol. II, p.

       30). DCS’s counsel immediately responded by stating, “I believe so.” (Tr. Vol.

       II, p. 30). Despite the absence of such a waiver, Father’s counsel did not object

       to DCS’s response. Following that hearing, the trial court issued an order,

       scheduling the factfinding for January 10, 2019 and January 17, 2019. The

       order noted that the “parties waive[d] the requirement that [f]actfinding be

       completed within sixty days.” (Appellant’s App. Vol. II, p. 65).


[13]   On January 10, 2019, the parties were present at the factfinding hearing, but the

       matter was continued to January 15, 2019. As of the day of that hearing, Child

       did not feel safe to go back to live with Father. She felt that if she went back to

       Father’s home things would go from bad to worse. Child stated that since she

       moved out of Father’s home in September 2018, she has never been happier.

       She testified that her “anxiety has lessened,” she was no longer depressed, she

       had gotten a job, and was saving up money to buy herself a car. (Tr. Vol. II, p.

       83). The factfinding hearing was then continued to January 17, 2019 and was

       concluded on the same day.


[14]   While the DCS’s CHINS petition was founded on claims of neglect pursuant to

       Indiana Code section 31-34-1-1, DCS sought to add an allegation of abuse

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 8 of 27
       pursuant to Indiana Code section 31-34-1-2 in light of all the evidence presented

       regarding Father’s physical abuse to Child. Thus, at the close of the DCS’s

       case-in-chief, and pursuant to Indiana Trial Rule 15(B), DCS moved to amend

       its petition to conform to the evidence. Over Father’s objection, the trial court

       granted DCS’s request. On April 15, 2019, the trial court issued an Order,

       adjudicating Child as a CHINS pursuant to Indiana Code sections 31-34-1-1;

       and -2. An initial dispositional hearing was scheduled for April 29, 2019.

       Father was not present, but his newly appointed attorney was, and she

       requested a continuance claiming that it was in Father’s “best interest.” (Tr.

       Vol. II, p. 180). On June 18, 2019, the trial court held and concluded the

       dispositional hearing. The following day, the trial court issued its dispositional

       order.


[15]   Father now appeals. Additional information will be provided as necessary.


                               DISCUSSION AND DECISION
                                 I. Timeliness of the Factfinding Hearing

[16]   Father contends that the trial court erred when it held the factfinding hearing

       outside the mandated statutory timeframe. Indiana Code section 31-34-11-1,

       provides, in relevant part that:


                (a) Except as provided in subsection (b), unless the allegations of
                a petition have been admitted, the juvenile court shall complete a
                factfinding hearing not more than sixty (60) days after a petition
                alleging that a child is a child in need of services is filed in
                accordance with [I.C. §] 31-34-9.


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 9 of 27
               (b) The juvenile court may extend the time to complete a
               factfinding hearing, as described in subsection (a), for an
               additional sixty (60) days if all parties in the action consent to the
               additional time.


               ****


               (d) If the factfinding hearing is not held within the time set forth
               in subsection (a) or (b), upon a motion with the court, the court shall
               dismiss the case without prejudice.


       (Emphasis added). In re J.S., 133 N.E.3d 707, 712-13 (Ind. Ct. App. 2019), we

       held that


               the General Assembly clearly intends for the timeframe set forth
               in Indiana Code section 31-34-11-1 to be a certain deadline.
               Further, while subsection (a) provides that the parties may waive
               the initial 60-day deadline by agreeing to a continuance,
               subsection (b) does not include any such provision. This lack of
               allowance for an additional extension of time indicates that the
               General Assembly intends to require that a factfinding hearing
               must be completed within 120 days of the filing of a CHINS
               petition regardless of any act or agreements of the parties. To
               allow the parties to agree to dates beyond the maximum 120-day
               limit would thwart the legislative purpose of timely rehabilitation
               and reunification of families that are subject to CHINS
               proceedings.


[17]   In the present case, on September 21, 2018, DCS filed a CHINS petition.

       During an initial hearing on October 15, 2018, twenty-four days after that filing,

       Father was initially present, but he had to be removed from the court room due

       to his disruptive behavior. Father’s counsel, however, was present during the


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 10 of 27
       hearing. At the close of the hearing, a discussion ensued as to available hearing

       dates. All parties agreed that an additional initial hearing was needed, and it

       was scheduled for November 27, 2018. The parties also agreed to a factfinding

       hearing to be completed on January 10, 2019, which was 111 days after DCS

       filed its CHINS petition. Father’s counsel did not object to the fact that the

       CHINS factfinding hearing was being scheduled beyond the sixty-day statutory

       timeframe or argue that the parties had not consented to an additional sixty

       days. See I.C.§§ 31-34-11-1(a), (b).


[18]   At the additional initial hearing on November 27, 2018, the trial court reiterated

       the scheduling of the factfinding hearing on January 10, 2019. The trial court

       noted that more than sixty days had lapsed since the filing of the CHINS

       petition. The trial court then assumed that “the parties have waived the [sixty-

       day] requirement.” (Tr. Vol. II, p. 30). DCS’s counsel responded that he

       believed the parties had agreed to such a waiver. While the record contains no

       such waiver, Father’s counsel did not raise any objection. Following that

       hearing, the trial court issued an order scheduling the factfinding to be held on

       two days—January 10, 2019 and January 17, 2019. In the order, the trial court

       restated that the parties had “waive[d] the requirement that [f]actfinding be

       completed within sixty days.” (Appellant’s App. Vol. II, p. 65). On January 3,

       2019, a case management hearing was held, and Father did not argue that the

       January 10, and 17, 2018 factfinding hearings were outside the hearing

       requirement set forth in Indiana Code section 31-34-11-1(a), or that the parties

       did not consent to an additional sixty days to complete the factfinding hearing


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 11 of 27
       pursuant to Indiana Code section 31-34-11-1(b). On January 10, 2019, the

       parties were present at the factfinding hearing, but the matter was continued to

       January 15, 2019. The factfinding hearing was ultimately conducted on two

       days—January 15, and 17, 2019, which was 116 days after the CHINS petition

       had been filed. At no point did Father object to the untimely nature of the

       factfinding hearing.


[19]   In re J.S., 133 N.E.3d at 713 we concluded, in part, that the CHINS statutory

       scheme provides mandatory deadlines and includes enforcement mechanisms.

       “This is not to say that the enforcement mechanisms are self-executing and a

       party can stand idly by until an adverse determination has been made. A party

       must preserve the right of expediency by filing a written motion to dismiss

       before the merits of a petition are litigated.” Id.


[20]   Father had some cognizable duty to challenge the untimely nature of the

       factfinding hearing during the initial hearings, which he failed to do.

       Additionally, not only did Father fail to object to the placing of the factfinding

       hearing outside the statutory timeframe, he did not file a motion with the court

       to dismiss the CHINS petition as Indiana Code section 31-34-11-1(d) mandates,

       thus, he invited the error. See Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d

       628, 657 (Ind. Ct. App. 2008). “The doctrine of invited error is grounded in

       estoppel and precludes a party from taking advantage of an error that he or she

       commits, invites, or which is the natural consequence of his or her own neglect

       or misconduct.” Id. (citing Balicki v. Balicki, 837 N.E.2d. 532, 541 (Ind. Ct.

       App. 2005), trans. denied).

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 12 of 27
[21]   Father then argues that even if he waived compliance with the timeframes, the

       trial court committed fundamental error by not sua sponte dismissing the CHINS

       case once the sixty-day timeframe was exceeded. The fundamental error

       doctrine is a narrow exception to the waiver doctrine and applies to an “error

       that was so egregious and abhorrent to fundamental due process that the trial

       judge should or should not have acted, irrespective of the parties’ failure to

       object or otherwise preserve the error for appeal.” In re G.P., 4 N.E.3d 1158,

       1167 n. 8 (Ind. 2014). For an appellate court to overturn a trial court ruling

       based on fundamental error, the error must have been “a clearly blatant

       violation of basic and elementary principles, and the harm or potential for harm

       therefrom must be substantial and appear clearly and prospectively.” S.M. v.

       Elkhart Cnty. Office of Family & Children, 706 N.E.2d 596, 600 (Ind. Ct. App.

       1999) (citation omitted).


[22]   Even if the trial court’s decision to conduct the factfinding hearing outside the

       statutory timeframe amounted to error, the harm for such error was not

       substantial enough to rise to the level of fundamental error. The record reveals

       that at an initial hearing in November 2018, the trial court noted that the

       scheduling of the factfinding hearing in January 2019 would be outside the

       timeframe set by Indiana statutes. DCS indicated that there was a waiver in

       place, and the trial court issued an order stating that the parties had waived the

       holding of the factfinding hearing beyond the sixty-day period. Moreover,

       Indiana Code section 31-34-11-1(d), spells out the enforcement mechanism of

       an aggrieved party. That section requires the trial court to dismiss the CHINS


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 13 of 27
       action if a motion is filed with the court. Father failed to file a motion to dismiss

       and the trial court acted on Father’s wavier. Under such circumstances, Father

       cannot complain that the factfinding hearings were held outside the statutory

       framework. Nor has Father identified any actual prejudice to his ability to

       present his case as a result of the delay. Thus, Father has not established that

       fundamental error occurred, and we hold that the trial court’s failure to

       complete the factfinding hearing on DCS’s CHINS petition within the statutory

       timeframe did not constitute error.


                               II. Timeliness of the Dispositional Hearing

[23]   Father additionally contends that the trial court erred when it held the

       dispositional hearing more than thirty days after the CHINS finding. In

       response, DCS claims that Father waived his right to challenge the setting of

       that dispositional hearing outside the statutory timeframe.


[24]   Indiana Code section 31-34-19-1(a) governs dispositional hearings and

       provides, in relevant part that “The juvenile court shall complete a dispositional

       hearing not more than thirty (30) days after the date the court finds that a child

       is a child in need of services . . .” Indiana Code section 31-34-19-1(b) continues

       to state that “if the dispositional hearing is not completed in the time set forth in

       subsection (a), upon filing of a motion with the court, the court shall dismiss the

       case without prejudice.” After the trial court entered its Order on the

       factfinding hearing on April 15, 2019, it only had thirty days to conduct a

       dispositional hearing.



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 14 of 27
[25]   The record shows that an initial dispositional hearing was scheduled for April

       29, 2019. Father was not present, but Father’s newly appointed counsel was,

       and she requested a continuance since she had not had a chance to review the

       case or consult with Father. In fact, Father’s counsel stated that it was in

       Father’s “best interest” that the dispositional hearing be continued. (Tr. Vol. II,

       p. 180). Based on Father’s counsel’s argument, the trial court questioned the

       parties as to whether they were waiving the “statutory time frames” for the

       dispositional hearing. (Tr. Vol. II, p. 180). All parties, including Father, did

       not object to the rescheduling of the dispositional hearing outside the thirty-day

       timeframe.


[26]   We agree with DCS that Father waived his right to challenge the untimely

       completion of the dispositional hearing. See Plank v. Cmty. Hospitals of Ind., Inc.,

       981 N.E.2d 49, 53 (Ind. 2013) (our supreme court held that “waiver” connotes

       an “intentional relinquishment or abandonment of a known right.”) Further,

       Indiana Code section 31-34-19-1(b) requires that if a dispositional hearing is not

       held within thirty days of the CHINS order, “upon a motion,” the matter shall

       be dismissed without prejudice. Father failed to file a motion to dismiss the

       CHINS case. Thus, Father cannot be afforded relief in this appeal.


                                 III. Amendment of the CHINS Petition

[27]   Next, we address Father’s argument that the trial court abused its discretion

       when it permitted DCS to amend its CHINS petition during the factfinding

       hearing.



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 15 of 27
[28]   We note that DCS’s Second Amended CHINS petition only alleged claims of

       neglect against Father pursuant to Indiana Code section 31-34-1-1( which

       requires proof that Child’s physical or mental health is seriously impaired or

       endangered as a result of the inability, refusal, or neglect of the parent,

       guardian, or custodian.) Prior to resting its case, DCS sought to amend its

       CHINS petition under Trial Rule 15(B) so that the petition could “conform to

       the evidence.” (Tr. Vol. II, p. 144). With the amendment, DCS sought to

       include Indiana Code section 31-34-1-2, which requires proof that Child’s

       physical or mental health is seriously endangered due to injury by the act or

       omission of Child’s parent, guardian, or custodian. Over Father’s objection,

       the trial court permitted the last-minute amendment. On appeal, Father argues

       that throughout the factfinding hearing, DCS focused on contentions that he

       neglected Child. Thus, Father contends that DCS’s late amendment did not

       afford him adequate notice that assertions pertaining to physical abuse to Child

       would be presented, and he argues that he was prevented from preparing an

       adequate defense.


[29]   Amendments to pleadings are to be liberally allowed. MAPCO Coal, Inc. v.

       Godwin, 786 N.E.2d 769, 777 (Ind. Ct. App. 2003). The trial court retains

       broad discretion in granting or denying amendments to pleadings, and we will

       reverse on appeal only when it abuses that discretion. Id. “An abuse of

       discretion may occur if the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before the court, or if the court has




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 16 of 27
       misinterpreted the law.” Fleming v. Int’l Pizza Supply Corp., 707 N.E.2d 1033,

       1036 (Ind. Ct. App. 1999), trans. denied.


[30]   Trial Rule 15(B) provides as follows


               When issues not raised by the pleadings are tried by express or
               implied consent of the parties, they shall be treated in all respects
               as if they had been raised in the pleadings. Such amendment of
               the pleadings as may be necessary to cause them to conform to
               the evidence and to raise these issues may be made upon motion
               of any party at any time, even after judgment, but failure so to
               amend does not affect the result of the trial of these issues. If
               evidence is objected to at the trial on the ground that it is not
               within the issues made by the pleadings, the court may allow the
               pleadings to be amended and shall do so freely when the
               presentation of the merits of the action will be subserved thereby
               and the objecting party fails to satisfy the court that the
               admission of such evidence would prejudice him in maintaining
               his action or defense upon the merits. The court may grant a
               continuance to enable the objecting party to meet such evidence.


[31]   Pursuant to T.R. 15(B), issues not set out in the pleadings may be tried by the

       express or implied consent of the parties. Baker v. Midland-Ross Corp., 508

       N.E.2d 32, 35 (Ind. Ct. App. 1987), trans. denied. The function of the issues,

       whether formed by the pleadings, pre-trial orders, or contentions of the parties,

       is to provide a guide for the parties and the court as they proceed through trial.

       Id. Either party may demand strict adherence to the issues raised before trial.

       Id. If the trial court allows introduction of an issue not raised before trial, an

       objecting party may seek a reasonable continuance in order to prepare to litigate

       the new issue. Id. However, where the trial ends without objection to the new


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 17 of 27
       issue, the evidence presented at trial controls. Id. Consequently, neither

       pleadings, pre-trial orders, nor theories proposed by the parties should frustrate

       the trier of fact from finding the facts that a preponderance of the evidence

       permits. Id.


[32]   Because fairness compels certain restraints, there are limits upon the principle of

       amending pleadings through implied consent. Id. at 36. For example, a party is

       entitled to some form of notice that an issue that was not pleaded is before the

       court. Id. Notice can be overt, as where the unpleaded issue is expressly raised

       prior to or sometime during the trial but before the close of the evidence, or

       implied, as where the evidence presented at trial is such that a reasonably

       competent attorney would have recognized that the unpleaded issue was being

       litigated. Id.


[33]   We begin our analysis by noting that the Second Amended CHINS petition

       focused on claims that Child was a CHINS due to neglect pursuant to Indiana

       Code section 31-34-1-1, and one of the material allegations cited indicated that

       Child had succumbed to physical abuse in Father’s care. Specifically, DCS

       alleged that “On or about September 12, 2018, [Child] became injured while

       she was in [Father’s] care, custody, and control.” (Appellant’s App. Vol. II, p.

       60). That allegation put Father on notice that DCS intended to present

       evidence that Child had been physically harmed in his care and that it would be

       an issue at the factfinding hearing.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 18 of 27
[34]   Additionally, at the initial hearing on September 21, 2018, DCS presented

       evidence that it had received three reports relating to Father’s physical abuse of

       Child. DCS claimed that Child had reported that Father had “grabbed [her] by

       the hair,” swung her “around on the floor” and “hit her in the head.” (Tr. Vol.

       II, p. 7). DCS added that on September 12, 2018, Father “struck” Child on her

       thigh causing her to have a bruise. (Tr. Vol. II, p. 7). DCS also presented

       pictures of Child’s bruise. DCS further stated that Child had “reported being

       afraid to go back home due to physical . . . abuse in the home” and that she was

       having “ideations [] of self-harm.” (Tr. Vol. II, p. 7).


[35]   Moreover, the transcript reveals a plethora of evidence elicited without

       objection at the factfinding hearing that Father had notice that evidence relating

       to physical abuse to Child would be presented at the factfinding hearing. Child

       explicitly testified regarding the incident where Father grabbed her hair,

       dragged her on the floor, and “hit her head about seven or eight times.” (Tr.

       Vol. II, p. 71). Child claimed that Father’s last blow in the head was “really

       hard” and she “kind of blacked out a little bit.” (Tr. Vol. II, p. 71). Child also

       recapped the incident where Father struck her on her thigh on September 12,

       2018. Child testified that Father was “trying to hit me with the belt and kind of

       open fisted me and hit me in my thigh.” (Tr. Vol. II, p. 85).


[36]   The purpose behind Trial Rule 15(B) is to provide the parties with some

       flexibility in litigating a case, and to promote justice by permitting evidence

       brought in at trial to determine the liability of the parties. In re V.C., 867 N.E.2d

       167, 169 (Ind. Ct. App. 2007). In sum, evidence was admitted, without

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 19 of 27
       objection, showing that Child had been injured in Father’s care. Moreover,

       even though the CHINS petition did not cite the appropriate statute relating to

       abuse, one of the allegations in the Second Amended CHINS petition put

       Father on notice that evidence involving abuse would be presented by DCS at

       the factfinding hearing. Thus, Father cannot show that the trial court abused its

       discretion by permitting DCS to amend the CHINS petition so that it could

       conform to the evidence. Accordingly, we hold that there was no abuse of

       discretion.


                                          IV. CHINS Adjudication.

[37]   Lastly, Father contends that the evidence is insufficient to support the trial

       court’s CHINS adjudication. DCS bears the burden of proving that a child is a

       CHINS by a preponderance of the evidence. In re Des.B., 2 N.E.3d 828, 835-36

       (Ind. Ct. App. 2014). In reviewing a CHINS determination, our court does not

       reweigh evidence or assess witness credibility. In re K.D., 962 N.E.2d 1249,

       1253 (Ind. 2012). We consider only the evidence in favor of the trial court’s

       judgment, along with any reasonable inferences derived therefrom. Id.


[38]   In addition, the trial court entered limited findings of fact and conclusions

       thereon sua sponte; thus, our review is governed by Indiana Trial Rule 52(A).

       The CHINS statute does not stipulate that formal findings must accompany a

       CHINS determination. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).

       Accordingly, for the issues covered by the court’s findings, we apply our two-

       tiered standard of review, first considering whether the evidence supports the

       factual findings and then whether those findings support the trial court’s
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 20 of 27
       judgment. Id. We will not set aside the findings or judgment unless they are

       clearly erroneous. In re Des.B., 2 N.E.3d at 836. Factual findings are clearly

       erroneous where there are no facts in the record to support them either directly

       or by inference. Id. “A judgment is clearly erroneous if it relies on an incorrect

       legal standard.” Id. We accord substantial deference to the trial court’s

       findings of fact but not to its conclusions of law. Id. Any issues not covered by

       the trial court’s findings are reviewed under the general judgment standard,

       “under which a judgment will be affirmed if it can be sustained on any legal

       theory supported by the evidence.” In re S.D., 2 N.E.3d at 1287 (internal

       quotation marks omitted).


[39]   Here, the trial court concluded that Child is a CHINS “as defined by I.C.31-34-

       1-1 and 31-34-1-2.” (Appellant’s App. Vol. II, p. 97). To meet its burden of

       establishing CHINS status pursuant to Indiana Code Section 31-34-1-1, DCS

       must prove that Child is under eighteen and that


               (1) Child’s physical or mental condition is seriously impaired or
               seriously endangered as a result of the inability, refusal, or
               neglect of Child’s parent, guardian, or custodian to supply Child
               with necessary food, clothing, shelter, medical care, education, or
               supervision; and


               (2) Child needs care, treatment, or rehabilitation that:


               (A) Child is not receiving; and


               (B) is unlikely to be provided or accepted without the coercive
               intervention of the court.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 21 of 27
[40]   To meet its burden of proving CHINS status pursuant to Indiana Code Section

       31-34-1-2, DCS must prove that Child is under eighteen and that


               (1) Child’s physical or mental health is seriously endangered due
               to injury by the act or omission of Child's parent, guardian, or
               custodian; and


               (2) Child needs care, treatment, or rehabilitation that:


               (A) Child is not receiving; and


               (B) is unlikely to be provided or accepted without the coercive
               intervention of the court.


               (b) Evidence that the illegal manufacture of a drug or controlled
               substance is occurring on property where a child resides creates a
               rebuttable presumption that Child’s physical or mental health is
               seriously endangered.


[41]   Father specifically challenges the following findings:


               D. [Child] and [Father] do not have a good relationship and the
               two get into arguments and yell at one another. From the
               testimony of [Child], the [c]ourt finds that Child has a difficult
               time expressing her feelings to [] [F]ather. She tries not to anger
               [] [F]ather and is scared when he becomes angry. [Father] has
               put his hands on [Child] when he has become angry with her.


               E. In May of 2018, [Child] was making breakfast in the kitchen.
               She then left the home in order to get syrup from her
               grandmother’s house, however, no one was at her grandmother’s
               home when she got there, so she returned home. When she
               returned to her home, [Father] asked her where she had been and

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 22 of 27
        hit her in the head approximately 7-8 times and pulled her hair.
        [C]hild believes that she may have blacked out for a few seconds
        after being struck in the head. Her [stepmother], brother and the
        step-mother’s grandmother were at home at the time that this
        incident occurred, however, no-one acted to protect her.

        Between May of 2018 and August 22, 2018, [Child] and []
        [F]ather had disagreements about [Child] going to see her
        boyfriend. [Father] does not like [Child]’s boyfriend and the two
        would get into arguments about her boyfriend and other issues
        about every other week. During their arguments, [Father] would
        call Child names and/or belittle her including calling [Child] her
        mother’s name and making disparaging remarks about [Child’s]
        mother. This behavior hurt [C]hild greatly and was emotionally
        harmful to her.


        On September 12, 2018, [C]hild did not go to school because she
        had a stomach ache. She also had a doctor’s appointment that
        day and [Father] transported her to the appointment. On the
        way to the appointment, [C]hild asked [] [F]ather if she could go
        on a hayride with her sister and two (2) nephews at the pumpkin
        patch. [] Father then yelled at her and said that she never wanted
        to do things with him and expressed concern that she was not
        home much. They went to the appointment and when the
        appointment was over, they returned to the car and were
        returning home when the argument resumed. As they were
        driving home, [] [F]ather lunged at [C]hild. Passers-by witnessed
        the events and called the police. When the car stopped, [C]hild
        attempted to get out of the car, however, [] [F]ather threatened to
        beat her, so she remained in the car. The police arrived and
        interviewed her and then took her to school. After she arrived at
        school that day, she went into the girl’s restroom because she was
        upset about what had happened in the car with [] [F]ather. She
        then went into Mrs. Price’s office and informed her about what
        had happened between herself and [] [F]ather that day. A school
        nurse took photographs of a bruise on her thigh that she

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 23 of 27
        sustained from an argument that occurred with [] Father one (1)
        week prior. Ultimately, the Dean of Students called the police
        officer back and also called the DCS who came to the school and
        interviewed [C]hild. She was then taken to Youth Services
        Center by the Department of Child Services case manager.


        ****


        P. [Child] is sixteen (16) years old. She and [] [Father], have a
        dysfunctional relationship which has resulted in physical violence
        being perpetrated upon [Child] by [] [Father]. [] [F]ather has also
        belittled [] [C]hild and made disparaging remarks to her which
        has been harmful for her mental and emotional well-being.
        [Father] lacks appropriate parenting skills and has difficulty
        managing his anger. As a result, the [C]hild does not feel safe
        around him and does not wish to return to his home.
        Accordingly, the [c]ourt finds that [] [C]hild’s physical or mental
        condition is seriously endangered or seriously impaired as a
        result of [] [Father]’s inability to provide her with necessary food,
        clothing, shelter, medical care, education, or supervision;

        [] [Child], and [] [F]ather are in need of counseling and other
        services to assist them in repairing their damaged relationship
        and to teach the two how to interact appropriately with one
        another. Additionally, [Father] is in need of services to assist
        him in dealing with his anger and hostility towards his daughter
        and others and to assist him in learning how to appropriately
        parent his child. He has been resistant to participating in services
        in this case and had been resistant to services in the prior CHINS
        case involving his son, [S.Y.]. He has demonstrated that he will
        not willingly participate in services designed to assist him in
        providing the [C]hild with the necessary food, clothing, shelter,
        medical care, education or supervision without the coercive
        intervention of the [c]ourt.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 24 of 27
               Q. In September of 2018, [] [C]hild received physical injuries in
               the form of a bruised thigh as a result of [Father]’s use of physical
               violence and/or inappropriate discipline. In May of 2018,
               [Father] struck Child in the head 7 or 8 times because he was
               angry with her and/or as a means of discipline resulting in Child
               “blacking out” for a few seconds. There are significant concerns
               about [Father]’s history and propensity for engaging in physical
               violence, his inability to control his anger and his parenting skills.
               The [c]ourt concludes, by a preponderance of the evidence, that
               the [C]hild’s physical or mental health is seriously endangered
               due to injury by the act or omission of Child’s parent, guardian,
               or custodian.


       (Appellant’s App. Vol. II, pp. 91-97).


[42]   DCS maintains that the evidence supports the findings, and that the conclusions

       support the judgment, and Father’s challenges to the findings and conclusions

       are a request to reweigh the evidence. We agree. For instance, Father claims

       that a “bruise which occurred approximately September 5, 2019, is not likely to

       be visible more than two weeks later.” (Appellant’s Br. p. 34). At the

       factfinding hearing, Child unequivocally testified that Father struck her on her

       thigh on September 12, 2018, causing her to bruise. When FCM Medina

       questioned Child on September 19, 2018, seven days after the alleged incident,

       FCM Medina observed the “bruise to be [greenish-yellow] in color[,] and was

       large and round.” (Appellant’s App. Vol. II, pp. 25-26). Pictures relating to

       Child’s bruise were admitted into evidence. Thus, Father’s argument is

       contrary to the evidence and is a request to reweigh the evidence.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 25 of 27
[43]   Father then downplays the emotional impact his name calling had on Child.

       During her initial contact with FCM Medina, Child stated that Father would

       call her a “cunt and bitch.” (Appellant’s App. Vol. II, p. 27). At the

       factfinding hearing, Child testified that Mother was a drug addict and when

       Father compared her to Mother as a way to demean her, it “broke [her] heart.”

       (Tr. Vol. II, p. 73). Child additionally testified that whenever she argued with

       Father, Father would call her names. Father’s favorite name to call Child was

       “ignorant.” (Tr. Vol. II, p. 73). Child testified that Father’s name calling was

       hurtful. Further, Child testified that since she moved out of Father’s and

       Stepmother’s home in September 2018, she has never been happier. She stated

       that her “anxiety has lessened,” she was no longer depressed, she had gotten a

       job, and was saving up money to buy herself a car. (Tr. Vol. II, p. 83). Contrary

       to Father’s claim, his disparaging remarks to Child were harmful to her mental

       and emotional well-being.


[44]   The CHINS statute, however, does not require that a court wait until a tragedy

       occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009).

       Rather, a child is a CHINS when he or she is endangered by parental action or

       inaction. Id. The purpose of a CHINS adjudication is not to punish the parents,

       but to protect Child. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans.

       denied. Father’s acts and omissions not only caused physical injury to Child,

       they were also harmful to Child’s mental and emotional well-being, and

       Father’s acts and omissions placed Child in a situation where DCS had to

       intervene. Based on the foregoing, we conclude that the trial court’s


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 26 of 27
       determination that Child was a CHINS under Indiana Code sections 31-34-1-1

       and -2, was supported by sufficient evidence.


                                               CONCLUSION

[45]   Based on the foregoing, we conclude that the trial court’s failure to complete

       the factfinding hearing on DCS’s CHINS petition within the statutory

       timeframe did not constitute error; Father waived his right to challenge the

       untimely completion of the dispositional hearing; the trial court did not abuse

       its discretion by permitting DCS to amend the CHINS petition so that it could

       conform to the evidence; and the evidence was sufficient to support the trial

       court’s CHINS adjudication.


[46]   Affirmed.


[47]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020   Page 27 of 27
