MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                 Jan 17 2018, 8:13 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General
                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana
                                                         ATTORNEY FOR CO-APPELLEE
                                                         Carey Haley Wong
                                                         Child Advocates, Inc..
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of N.J. and J.J.,                          January 17, 2018
Children in Need of Services                             Court of Appeals Case No.
                                                         49A02-1707-JC-1565
M.R. (Mother),
                                                         Appeal from the Marion Superior
Appellant-Respondent,                                    Court – Juvenile Division
        v.                                               The Honorable Marilyn Moores,
                                                         Judge
The Indiana Department of                                The Honorable Danielle Gaughan,
Child Services,                                          Magistrate

Appellee-Petitioner,                                     Trial Court Cause Nos.
                                                         49D09-1612-JC-4497
                                                         49D09-1612-JC-4498



Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JC-1565 | January 17, 2018           Page 1 of 9
              And

      Child Advocates, Inc.,
      Co-Appellee (Guardian ad Litem)




      Vaidik, Chief Judge.



                                          Case Summary
[1]   M.R. (“Mother”) appeals the trial court’s finding that her sons are children in

      need of services (“CHINS”) and its order requiring her to participate in home-

      based therapy. Finding no error, we affirm.



                            Facts and Procedural History
[2]   Mother and M.J. (“Father”) have two sons: N.J., born in December 2013, and

      J.J., born in November 2016. On December 9, 2016, a few weeks after J.J. was

      born, Mother noticed that he was acting particularly fussy and took him to the

      emergency room. He was found to have a variety of injuries, including thirteen

      rib fractures, a broken collar bone, four leg and arm fractures, brain bleeding,

      spinal damage, and bruised lungs. It was determined that the injuries were non-

      accidental, and Father eventually admitted to beating J.J. Father was arrested

      and charged with felony battery and neglect of a dependent.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JC-1565 | January 17, 2018   Page 2 of 9
[3]   On December 13, the Department of Child Services (“DCS”) filed a petition

      alleging that both J.J. and N.J. were CHINS. Both children were removed

      from Mother and Father and placed with Mother’s mother. The fact-finding

      hearing began on March 21, 2017. One of DCS’s witnesses failed to appear, so

      the trial court ordered the parties to return a week later. In the meantime, the

      court ordered the children returned to Mother on the condition that the children

      have no contact with Father, who by then had been released on bond in his

      criminal case.


[4]   On the second day of the fact-finding hearing on March 28, DCS called its final

      witness and then rested its case, and the attorneys delivered closing arguments.

      The court took the matter under advisement and scheduled a ruling hearing for

      May 2, leaving the children in Mother’s care.


[5]   On April 5, the Family Case Manager (“FCM”) assigned to the case, Arealia

      Williams, made an unannounced visit to Mother’s home and decided to

      remove the children. In an affidavit filed the next day, FCM Williams stated

      that when she knocked on the door at Mother’s home, Father answered. She

      added:


              At that time [Mother] was not at home but later arrived home.
              [Father] has a [no-contact order] with the Criminal Courts as
              well as DCS and is not allowed to have access to the children or
              [Mother]. At this time DCS cannot ensure the safety of the
              children if they are left in the care of their mother.


      Appellant’s App. Vol. II p. 85.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JC-1565 | January 17, 2018   Page 3 of 9
[6]   On April 10, DCS moved to reopen its case in chief. Over objections by

      Mother and Father, the court granted the motion and set a third day of the fact-

      finding hearing for May 23. At that hearing, FCM Williams testified as follows

      regarding the visit on April 5:


              I initiated a pop-in at the home to check the wellbeing of the
              children. When I got to the home, I knocked and stood outside
              for a while. Eventually, someone answered the door. I noticed
              who it was that answered the door. I recognized the guy which
              was the children’s father. I asked him was [Mother] in the home,
              he said hold on, then he shut the door and then somebody else
              came to the door, which was later identified as [Mother’s]
              brother.


      Tr. pp. 120-21. Williams said that she had met and spoken with Father in

      person before April 5 and that she was “sure” it was him who answered the

      door at Mother’s home that day. Id. at 127. She also testified that Mother was

      not present when she arrived but showed up shortly thereafter and let her in the

      home, where she saw the children, Mother’s brother, and two other,

      unidentified people. She said she did not see Father again after he answered the

      door. Mother, on the other hand, testified that Father was not at her home on

      April 5.


[7]   After the hearing, the trial court issued an order in which it found the children

      to be CHINS. It explained, in part:


              The children’s physical or mental condition is seriously impaired
              or seriously endangered as a result of the inability, refusal, or
              neglect of the children’s parent, guardian, or custodian to supply

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JC-1565 | January 17, 2018   Page 4 of 9
              the children with necessary food, clothing, shelter, medical care,
              education, or supervision. Father inflicted horrific injuries to
              [J.J.] and Mother has shown an inability to protect both children
              from future and further injury. In spite of the order of this Court,
              the no contact order from a criminal court, the protective order,
              and the knowledge that Father had seriously injured [J.J.],
              Mother still allowed Father around the children. Not only did
              she allow Father around the children, she left the house. Though
              there were other people present in the home, it had only been
              approximately four months since Father caused severe and
              extensive injuries to [J.J.]. For Mother to allow Father access to
              the children demonstrates excessively poor judgment by Mother,
              is a failure by her to supply the children with appropriate
              supervision, and is a significant risk to the safety of the children.


      Appellant’s App. Vol. II pp. 113-14. The court then held a dispositional

      hearing and ordered Mother to participate in home-based therapy.


[8]   Mother now appeals.1



                                  Discussion and Decision
[9]   Mother’s appeal, like the trial court’s CHINS finding, focuses on the conclusion

      that Mother allowed Father to be around the children while the case was

      pending, which in turn was based on FCM Williams’ testimony on the third

      day of the fact-finding hearing. We begin by addressing Mother’s contention




      1
       Father is not involved in this appeal. A few months after the CHINS disposition, he pled guilty to felony
      battery in the criminal case and was sentenced to serve three years in prison.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JC-1565 | January 17, 2018           Page 5 of 9
       that the third day of the hearing never should have happened—that the trial

       court should not have agreed to reopen the hearing.


[10]   Initially, Mother asserts that the trial court lacked authority to reopen the case.

       She cites our Supreme Court’s statement that “[a] party should be afforded the

       opportunity to reopen its case to submit evidence which could have been part of

       its case in chief.” Ford v. State, 523 N.E.2d 742, 746 (Ind. 1988). She takes this

       to mean that a trial court can never reopen a case to allow a party to present

       evidence that could not have been part of its case in chief—that is, newly

       discovered evidence. Mother does not cite any authority in support of this

       proposition, and we are not aware of any. In fact, one of the other cases cited

       by Mother provides authority to the contrary. See Lee v. State, 439 N.E.2d 603,

       604-05 (Ind. 1982) (affirming trial court’s decision to reopen case to allow State

       to present evidence that defendant, after State initially rested, tried to escape

       from custody); see also Cansler v. State, 281 N.E.2d 881, 883 (Ind. 1972) (“The

       trial court possessed the requisite power to re-open this case and hear this

       additional witness[.]”).


[11]   Mother also argues that, even if the trial court had discretion in deciding

       whether to reopen the hearing, it abused that discretion. See Moss v. State, 13

       N.E.3d 440, 446 (Ind. Ct. App. 2014) (“The granting of permission to reopen a

       case is generally within the discretion of the trial court, and the decision will be

       reviewed only to determine whether there has been an abuse of discretion.”),

       trans. denied. Specifically, Mother contends that reopening the hearing served to

       delay the reunification of the family. But we agree with DCS that the move

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JC-1565 | January 17, 2018   Page 6 of 9
       actually had the exact opposite effect. If the trial court had done as Mother

       suggests and required DCS to file “a new request for permission to file a new

       Petition Alleging the Children CHINS,” Appellant’s Br. p. 37, the case would

       have started essentially from scratch, and reunification would have been

       delayed even further.


[12]   Mother has not convinced us that the trial court erred or abused its discretion

       by reopening the hearing.2


[13]   Mother’s primary argument on appeal is that, even if the third day of the

       hearing was properly held, DCS failed to present sufficient evidence to support

       the CHINS finding. Despite this broad framing, Mother’s argument ultimately

       turns on one narrow issue: whether there is evidence that supports the trial

       court’s conclusion that Mother allowed Father to be with the children while the

       case was pending.3 We conclude that there is.


[14]   When asked to decide whether there is sufficient evidence to support a CHINS

       finding, we consider only the evidence and reasonable inferences therefrom that




       2
         Mother also cites Indiana Code section 31-34-11-1, which provides that the fact-finding hearing in a CHINS
       case “shall” be completed within 120 days of the filing of the CHINS petition (or sixty days if, unlike in this
       case, the parties do not consent to an extension). Here, the fact-finding hearing was completed more than
       160 days after the petition was filed. However, as Mother herself acknowledges, we have held that the
       “shall” used in the statute is directory, not mandatory, given the protective purposes of the CHINS statutes.
       See Parmeter v. Cass Cty. Dep’t of Child Servs., 878 N.E.2d 444, 448 (Ind. Ct. App. 2007), reh’g denied. For the
       reasons already discussed, the trial court was justified in allowing the fact-finding hearing to continue beyond
       the statutory deadline.
       3
         Mother does not argue, in the alternative, that the CHINS finding was erroneous even if it is true that she
       allowed Father around the children. Implicit in this silence is an acknowledgement that, if she allowed
       Father to be around the children, the CHINS finding was proper.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JC-1565 | January 17, 2018             Page 7 of 9
       are most favorable to the judgment, and we neither reweigh the evidence nor

       reassess the credibility of the witnesses. In re K.D., 962 N.E.2d 1249, 1253 (Ind.

       2012). In this case, while Mother testified and argued in the trial court that

       Father was not actually around the children during the case—that FCM

       Williams was mistaken in her belief that the man who answered the door at

       Mother’s home was Father—she (correctly) does not challenge the trial court’s

       credibility determination on that issue. Instead, she asserts that there is no

       evidence that she willingly allowed Father to be around the children. She

       maintains that “there was no evidence Mother had knowledge that when she

       left the home, she was aware the Father would be in the home, that he was at

       the home, or that he had been in the home prior to the children’s removal from

       her home.” Appellant’s Br. p. 29. But regardless of whether Father arrived at

       Mother’s home before or after she went out, the trial court’s conclusion that

       Mother “allowed” him to be there is an entirely reasonable inference from the

       evidence that Father was in the home and felt comfortable enough to answer

       the door. The conclusion is also supported by the fact that the other people in

       the home, including Mother’s own brother, did nothing to keep Father out,

       which suggests that Mother did not instruct them to do so.


[15]   Mother’s final argument is flawed for the same reason. She contends that the

       trial court should not have ordered her to participate in home-based therapy

       because she “had already successfully completed homebased therapy[.]” See id.

       at 34. This assumes, of course, that the therapy had its intended impact on

       Mother the first time. But the trial court clearly believed otherwise, a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JC-1565 | January 17, 2018   Page 8 of 9
       conclusion that is supported by the evidence that Mother allowed Father to be

       with the children while the case was pending. Therefore, we cannot say that

       the trial court erred by ordering Mother to continue home-based therapy.


[16]   Affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JC-1565 | January 17, 2018   Page 9 of 9
