MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Jun 16 2016, 8:48 am
regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John T. Wilson                                            Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana

                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                            IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of: K.M., I.M.,                              June 16, 2016
H.M., & G.M. (Minor Children):                             Court of Appeals Case No.
                                                           48A04-1512-JC-2134
C.K. (Mother),                                             Appeal from the Madison Circuit
Appellant-Respondent,                                      Court
                                                           The Honorable G. George Pancol,
        v.                                                 Judge
                                                           The Honorable Randall Hainlen,
Indiana Department of Child                                Senior Judge
                                                           The Honorable Jack L. Brinkman,
Services,
                                                           Juvenile Referee
Appellee-Petitioner.
                                                           Trial Court Cause Nos.
                                                           48C02-1503-JC-70, 48C02-1503-
                                                           JC-71, 48C02-1503-JC- 72, 48C02-
                                                           1503-JC-73




Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016               Page 1 of 10
      Bradford, Judge.



                                           Case Summary
[1]   T.M. (“Father”) and C.K. (“Mother”) are the parents of K.M., I.M., H.M., and

      G.M. (collectively, the “Children”). In March of 2015, the Indiana Department

      of Child Services (“DCS”) received three separate reports that the Children

      were the victims of physical abuse and neglect by their parents. DCS also

      learned that the Children were the subject of child-welfare cases initiated in

      New York in 2014. After investigating the reports of abuse and neglect, DCS

      initiated legal proceedings in which DCS alleged that the Children were

      children in need of services (“CHINS”).


[2]   Father subsequently admitted that the Children were CHINS. Mother did not

      contest the facts relating to the allegations of abuse and neglect, but argued that

      the juvenile court could not properly exercise jurisdiction over her and the

      Children. The juvenile court determined otherwise and, following an

      evidentiary hearing, found the Children to be CHINS.


[3]   On appeal, Mother does not challenge the sufficiency of the evidence to support

      the juvenile court’s CHINS determination. Instead, Mother contends that the

      juvenile court erred by exercising jurisdiction over her and the Children.

      Concluding that the juvenile court properly exercised jurisdiction over Mother

      and the Children, we affirm.




      Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016   Page 2 of 10
                                Facts and Procedural History
[4]   The facts of this case are undisputed. Mother and Father1 are the parents of the

         Children. The family moved frequently as a result of Father’s employment as a

         truck driver. Prior to moving to Indiana in early 2015, the family had resided in

         New York.


[5]      On March 6, 2015, DCS received a report that the Children were the victims of

         physical abuse and neglect. At some point, DCS also learned that the Children

         were the subjects of pending child-welfare cases initiated in New York in June

         of 2014. The New York child-welfare cases involved allegations of unsanitary

         home conditions, neglect, and domestic violence.


[6]      DCS subsequently received two more reports that the Children were the victims

         of physical abuse and neglect. The reports indicated that


                   the [C]hildren were unattended outside. Um that [I.M.] and
                   [K.M.] were nude on the front porch on several occasions. Um
                   that there was a school bus incident where the [C]hildren were
                   running out towards the road. Um the allegations were that the
                   bus driver had to honk to get the kids out of the road. Um there
                   were allegations that um mom was locking the [C]hildren in their
                   bedrooms, that the [C]hildren could be heard screaming and
                   yelling from outside of the home, um and that there were
                   allegations that one or more of the [C]hildren were feces




         1
             Father does not appeal the trial court’s order finding the Children to be CHINS.

         Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016   Page 3 of 10
        smearing and Mom was not cleaning up the feces that was being
        smeared.


Tr. pp. 71-72. In responding to these reports, DCS completed an assessment

during which DCS case assessor Virginia Jarnagin found the following:


        [K.M.] c[a]me running from the downstairs bedroom. He [w]as
        completely nude, he was his hands and face were very dirty. Um
        I asked if I could see the other children. Um I went to the
        upstairs bedrooms. Um the first bedroom that I went into um
        there was a lock, a sliding lock on the outside of the door. I went
        in um and [I.M.] was laying in a toddler bed. He was completely
        nude, his hands, his face, um were completely covered with feces.
        There was feces in his bed, among his blankets, um an
        extensive amount of feces on the floor and smeared onto the wall.
        I then went into the adjoining bedroom. [H.M.] was in a
        crib. Um she was nude, um … also [her] hands, face, um were
        covered in feces. She was laying, I took the blanket off her,
        which was soaked in urine. It had both dry urine and soaked
        urine that … was laying on top of her. Um like I said she was
        nude. She was laying on top of a mattress that was plastic so the
        urine was actually … pooled on the mattress and she was laying
        in it. Her hair was completely saturated with urine. She had a
        sippy cup. Um there was urine, um there was feces all over the
        crib slats and all over the mattress. I then went downstairs, back
        downstairs, [G.M.] was in his car seat. Um that’s where he was
        sleeping. Um his car seat or his …diaper was completely
        saturated um to where the diaper was jelling up and falling out.
        Um he smelled um strongly like urine, feces, spoiled milk. Um
        which was pretty overwhelming.


Tr. pp. 72-73. Jarnagin further indicated that the smell of the home “quite

frankly [made her] want to throw up.” Tr. p. 78.



Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016   Page 4 of 10
[7]   Elwood Police Officer John Davis, Sr., who accompanied Jarnagin to the

      home, further stated that the Children were “dirty” and the family’s home was

      “overwhelmingly smelly.” Tr. p. 90.


              It was like human urine mixed with decaying. I mean the only
              way I can describe it, not to be too vulgar but the last time I
              smelled such strong odors it was death. It was very, very bad.
                                                ****
              We went threw [sic] all of the house and the kitchen was very[,]
              very bad. There was, I can only assume, several weeks’ worth of
              trash built up on the floor. It was like climbing up the walls. Um
              there was decaying food everywhere. The sink was full [ ] of dirty
              dishes and the smell was really[,] really bad in there. It was
              obvious that it hadn’t been maintained in quite some time.…
              [P]robably the most disturbing place was upstairs.… [Mother]
              would describe each room as to which kid slept here … it was
              overwhelming[], the smell was even worse, … I couldn’t image it
              being worse then [sic] what I had already experienced but it was
              even worse. There was like piles of human poop on the floor. It
              had been there for a long time because they were hardened at this
              point. There was poop just smeared all over the walls. [Mother]
              described one small bed as her daughter’s bed and the bed was
              plastic material. You know you’re supposed to put a mat or a
              cover over it and everything but that plastic, you could see where
              a child had slept in it a long time cause it had kind of a form of a
              body there. And that … was, you know there was pee, standing
              pee in there.… There was one room where there was a big lock
              on the lock and [Mother] said well my husband locks our son in
              there because [ ] he is so uncontrollable and that room might
              have been the worst. There was more of the pee and poop and
              smeared everywhere.


      Tr. pp. 90, 92-93.




      Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016   Page 5 of 10
[8]    Following Jarnagin and Officer Davis’s visit to the family’s home, Mother was

       arrested for neglect and the Children were removed from the home. On March

       13, 2015, DCS filed petitions alleging that the Children were CHINS. In these

       petitions, DCS alleged that the Children suffered physical abuse and neglect at

       the hands of their parents. DCS also alleged that parents had prior child

       welfare history in New York.


[9]    On May 19, 2015, Mother filed a motion to dismiss the CHINS cases or, in the

       alternative, to transfer the cases to New York. Specifically, Mother argued that

       New York was the proper jurisdiction because Mother still had an open child

       welfare case in New York. The juvenile court took Mother’s May 19, 2015

       motion under consideration and gave DCS time to respond.


[10]   The juvenile court conducted a hearing on May 27, 2015. During this hearing,

       Father admitted that the Children were CHINS and agreed to participate in

       services. Also during the hearing, Mother made an oral motion to transfer the

       cases to New York. In response to Mother’s oral motion, DCS indicated that

       the New York cases were in the process of being transferred to Madison

       County. After considering the arguments of both parties, the juvenile court

       denied Mother’s oral motion. The juvenile court subsequently conducted a

       hearing on Mother’s May 19, 2015 motion to dismiss. Following this hearing,

       the juvenile court denied Mother’s motion to dismiss.


[11]   On October 2, 2015, the juvenile court conducted a fact-finding hearing as to

       Mother. At the beginning of the hearing, Mother renewed her motion to


       Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016   Page 6 of 10
       dismiss, which the juvenile court denied. In response, DCS again reiterated that

       officials in New York had indicated to DCS that they were in the process of

       transferring the family’s open New York cases to Indiana. At the conclusion of

       the hearing, the juvenile court adjudicated the Children to be CHINS. This

       appeal follows.



                                  Discussion and Decision
[12]   Initially, we note that Mother does not challenge the sufficiency of the evidence

       to sustain the juvenile court’s determination that the Children were CHINS.

       Instead, Mother argues that the juvenile court erred by asserting personal

       jurisdiction over her and the Children. Personal jurisdiction “refers to the right

       of the court to exercise jurisdiction over the particular parties who are brought

       before the court.” Truax v. State, 856 N.E.2d 116, 122 (Ind. Ct. App. 2006). In

       arguing that the juvenile court erred by asserting personal jurisdiction over her

       and the Children, Mother claims that the Uniform Child Custody Jurisdiction

       Act (the “Act”) applies, and that under the Act, New York was the proper

       jurisdiction for any custody issues concerning Mother and the Children. We

       disagree.


[13]   Under the Act, an Indiana court has an affirmative duty to question its

       jurisdiction when it becomes aware of an interstate dimension in a child-

       custody dispute. Barwick v. Ceruti, 31 N.E.3d 1008, 1013 (Ind. Ct. App. 2015)

       (citing Bowles v. Bowles, 721 N.E.2d 1247, 1249 (Ind. Ct. App. 1999)). “When

       confronting an interstate custody dispute, the trial court must engage in a multi-

       Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016   Page 7 of 10
       step analysis to determine: 1) whether it has subject-matter jurisdiction; 2)

       whether there is a custody proceeding pending in another state which would

       require the court to decline its jurisdiction; and 3) whether the trial court should

       exercise its jurisdiction because Indiana is the most convenient forum.” Id.

       (citing Bowles, 721 N.E.2d at 1249). Although a CHINS case is not a custody

       dispute per se, we have held that when considering a CHINS case, a juvenile

       court must exercise its jurisdiction within the framework and policy

       considerations of the Act. See Matter of E.H., 612 N.E.2d 174, 182 (Ind. Ct.

       App. 1993) (providing that “a CHINS court can and must” exercise its

       jurisdiction within the framework and policy considerations of the Act).


[14]   We review a juvenile court’s determination regarding jurisdiction for an abuse of

       discretion. Barwick, 31 N.E.2d at 1013. “An abuse of discretion occurs when

       the trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court.” Id. “The court also abuses its discretion when

       it misinterprets or misapplies the law.” Id. The Act provides that an Indiana

       court has jurisdiction if Indiana is the home state of the children at issue when

       the proceedings were commenced or if the home state declines to exercise

       jurisdiction. Id. (citing Ind. Code § 31-21-5-1).


[15]   Mother argues that the case should have been transferred to New York because

       New York did not decline to exercise jurisdiction over the instant matter.

       However, Mother fails to establish that such an act was necessary before the

       juvenile court could exercise jurisdiction over the instant matter. The record

       indicates that DCS became involved with Mother and the Children after

       Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016   Page 8 of 10
       receiving numerous reports of neglect and abuse. The reported neglect and

       abuse was alleged to have occurred in Madison County. Further, although

       Mother and the Children had previously lived in and were the subject of prior

       child-welfare proceedings in New York, at the time DCS became involved with

       Mother and the Children, the family was living in Madison County. The

       record also reveals that during the May 27, 2015 hearing, DCS informed the

       juvenile court that since the family had moved to Indiana, the New York court

       was in the process of relinquishing jurisdiction by transferring its prior child-

       welfare cases involving Mother and the Children to Indiana.2 These facts

       demonstrate that as of the date of the initiation of the underlying CHINS

       proceedings, the family was residing in Indiana, Indiana had an interest in

       protecting the Children as they were living within its borders, and Indiana was

       the most convenient forum to address the concerns relating to the neglect and

       abuse of the Children. As such, we conclude that the juvenile court properly

       exercised jurisdiction over the underlying CHINS proceedings.


[16]   Further, we observe that in arguing that jurisdiction belonged in New York,

       Mother claimed that she intended to move back to New York at some point.

       Mother, however, did not present any evidence relating to any concrete plans to

       move back to New York or to a time frame in which she intended to make this

       potential move. The juvenile court was not required to credit Mother’s



       2
         This fact clearly distinguishes the instant case from In re the Matter of E.H., in which the Texas
       court indicated that while Indiana had jurisdiction over certain custody issues, it was retaining
       jurisdiction over the issues of visitation, child support, and attorney’s fees. 612 N.E.2d at 179.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016    Page 9 of 10
       unsupported claim regarding her possible future intentions. See generally

       McCullough v. State, 985 N.E.2d 1135, 1139 (Ind. Ct. App. 2013) (providing that

       the jury, acting as the trier of fact, was under no obligation to credit defendant’s

       statement to police as evidence that he acted without fault or that his actions

       were reasonable).



                                                Conclusion
[17]   Again, on appeal, Mother only challenges the juvenile court’s exercise of

       jurisdiction. Because we conclude that the juvenile court properly exercised

       jurisdiction over the underlying CHINS proceedings, we affirm the judgment of

       the juvenile court.


[18]   The judgment of the juvenile court is affirmed.



       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1512-JC-2134 | June 16, 2016   Page 10 of 10
