MEMORANDUM DECISION                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Aug 12 2016, 8:49 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven J. Halbert                                        Gregory F. Zoeller
Carmel, Indiana                                          Attorney General of Indiana

                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of K.W., A.W.,                             August 12, 2016
and D.W. (Minor Children),                               Court of Appeals Case No.
Children in Need of Services,                            49A04-1601-JC-9
                                                         Appeal from the Marion Superior
and                                                      Court
                                                         The Honorable Marilyn A.
D.W. (Father),                                           Moores, Judge
Appellant-Respondent,
                                                         The Honorable Danielle Gaughan,
        v.                                               Magistrate
                                                         Trial Court Cause Nos.
The Indiana Department of                                49D09-1504-JC-1476, -1477, -1478
Child Services,
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016                 Page 1 of 15
      Crone, Judge.



                                            Case Summary

[1]   D.W. (“Father”) appeals trial court dispositional orders continuing the

      adjudication of his three minor children, K.W., A.W., and D.W. (collectively

      “the Children”) as children in need of services (“CHINS”). He claims that the

      trial court violated his due process rights by adjudicating the Children as

      CHINS in proceedings involving the Children’s mother (“Mother”) without

      giving him an opportunity to be heard. He also maintains that the findings and

      evidence are insufficient to support the trial court’s conclusion concerning the

      Children’s placement with a relative other than Father. Concluding that his

      due process rights were not violated and that the findings and evidence support

      the placement, we affirm.


                              Facts and Procedural History
[2]   K.W., A.W., and D.W. (born in 2001, 2003, and 2005 respectively) were born

      of the marriage between Father and Mother. In 2007, Mother took the

      Children from school and relocated with them from South Carolina to

      Indianapolis. Father remained in South Carolina.


[3]   On April 14, 2015, the Department of Child Services (“DCS”) received a report

      alleging that Mother and the Children were living in a home without utilities,

      that they had to be out of the home within days and had no plan for housing,

      that the Children did not have food, and that the Children had excessive
      Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016   Page 2 of 15
      absences from school. DCS removed the Children from Mother and placed

      them in relative care with Mother’s aunt (“Aunt”), who had been caring for

      them for the preceding five years. The family case manager assigned to the case

      reported speaking to Father by telephone on April 30, 2015, and that he was

      living in South Carolina and was unaware of the circumstances that had led to

      the Children’s removal.


[4]   On May 1, 2015, DCS filed a petition to have the Children designated as

      CHINS. The CHINS petition alleged that Mother had failed to provide the

      Children with a safe, stable home environment; that Mother was homeless and

      unable to provide for the Children’s needs; that Mother and the Children had

      been living in a home with no utilities and very little food; that K.W. had

      excessive unexcused absences from school; that Mother had failed to meet the

      Children’s medical needs (no medical insurance or updated immunizations);

      that K.W. had been hospitalized for a suicide attempt and Mother had not

      continued her mental health treatment; that K.W. had suicidal ideations and

      had been cutting herself; that Father had not successfully demonstrated the

      ability or willingness to parent the children and was unable to ensure their

      safety and well-being while in Mother’s care; and that the coercive intervention

      of the court was necessary to ensure the Children’s safety and well-being.


[5]   Mother submitted a written admission of the CHINS allegations, and the trial

      court adjudicated the Children as CHINS. A dispositional hearing was set for

      June 26, 2015. On June 18, 2015, the trial court sent Father a summons with

      CHINS petition and advisement of rights. Father did not appear at the hearing,

      Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016   Page 3 of 15
      and the trial court issued a parental participation order concerning Mother. On

      July 6, 2015, Father signed and dated the advisement of rights. 1


[6]   On August 21, 2015, Father appeared and requested assistance of counsel and a

      factfinding hearing. The trial court vacated a scheduled default hearing and set

      Father’s factfinding hearing for October 26, 2015. On that date, Father did not

      appear in person but appeared by counsel. At the outset of the hearing, counsel

      stated, “Judge, I’ve spoken with my client extensively, he’d like to enter a

      waiver to the CHINS case today.” Tr. at 4. The trial court accepted the

      waiver, found that the Children would continue as CHINS, and set a

      dispositional hearing for December 11, 2015.


[7]   At the dispositional hearing, Father appeared by telephone and requested

      unsupervised visitation with the Children in South Carolina. The trial court

      denied his request but urged him to engage in telephone conversations with the

      Children as well as supervised visitation in Indiana. Based on the DCS family

      case manager’s report that the Children said that Father smokes marijuana and

      fights with his girlfriend, the trial court found a rational basis to order Father’s

      participation in random drug and alcohol screenings and a domestic violence

      assessment. The trial court issued a dispositional order with findings of fact and




      1
         The parties dispute the date upon which Father was first notified of the CHINS proceedings, and the record
      is unclear on this point. However, as discussed herein, Father’s subsequent waiver of factfinding amounted to
      acquiescence in the CHINS determination. Even so, we remind DCS that the better practice is to serve the
      out-of-state parent at the earliest opportunity in order to ensure that the parent is afforded ample time to
      respond and participate accordingly.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016             Page 4 of 15
       conclusions thereon, continuing the Children’s CHINS status and placement

       with Aunt and incorporating the predispositional and parent participation

       orders as well as DCS reports and petitions.


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


                                      Discussion and Decision
           Section 1 – Father was not denied his right to be heard at a
                 meaningful time and in a meaningful manner.
[9]    Father asserts that he was denied due process because the trial court had earlier

       determined that the Children were CHINS in proceedings involving Mother

       and denied him the right to be heard. He submits that the error is “so

       fundamental that no action short of setting aside the prior CHINS finding and

       disposition could correct it and no objection is required.” Appellant’s App. at

       14. 2 In analyzing this claim, it is important to address the nature and focus of a

       CHINS determination.


[10]   In a CHINS proceeding, the State bears the burden of proving by a

       preponderance of the evidence that a child meets the statutory definition of a




       2
          We note that Father’s brief is pejorative in tone and impugns the motives of DCS and the trial court. See,
       e.g., Tr. at 17-18, 20 (accusing DCS of making “misrepresentations” to the trial court and of “presuming that
       fathers are incapable of taking care of their children” and accusing the trial court of imposing “humiliating
       and onerous conditions” on him in the “hope that he would not be able to complete the services and the DCS
       could then use this ‘failure’ as an additional reason to push for termination.”). We remind counsel that
       “[i]nvectives are not argument, and have no place in legal discussion ....” Brill v. Regent Commc’ns, Inc., 12
       N.E.3d 299, 301 n.3 (Ind. Ct. App. 2014) (quoting Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Muncie
       & Portland Traction Co., 166 Ind. 466, 468, 77 N.E. 941, 942 (1906)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016               Page 5 of 15
       CHINS. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of

       establishing CHINS status, the State must prove that the child is under age

       eighteen,


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

               (2) the child needs care, treatment, or rehabilitation that:

                        (A) the child is not receiving; and

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

       Ind. Code § 31-34-1-1.


[11]   A CHINS designation focuses on the condition of the child rather than on an

       act or omission by the parent. N.E., 919 N.E.2d at 105. Whereas the acts or

       omissions of one parent can cause a condition that creates the need for court

       intervention,

               [a] CHINS adjudication can also come about through no
               wrongdoing on the part of either parent, e.g., where a child
               substantially endangers the child’s own health or the health of
               another individual; or when a child is adjudicated a CHINS
               because the parents lack the financial ability to meet the child’s
               extraordinary medical needs. While we acknowledge a certain
               implication of parental fault in many CHINS adjudications, the
               truth of the matter is that a CHINS adjudication is simply that –
               a determination that a child is in need of services.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016   Page 6 of 15
       Id. (citations omitted). A trial court need not wait until a tragedy occurs to

       intervene. In re A.H., 913 N.E.2d 303, 311 (Ind. Ct. App. 2009).


[12]   Father alleges that he was denied the opportunity to be heard to contest the

       CHINS designation. Due process requires that a person be afforded the

       opportunity to be heard at a meaningful time and in a meaningful manner. In re

       K.D., 962 N.E.2d 1249, 1257 (Ind. 2012). A parent’s right to raise one’s

       children is protected by due process. McBride v. Monroe Cnty. Office of Family &

       Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). Due process gives parents

       the right to a contested factfinding hearing in CHINS proceedings. K.D., 962

       N.E.2d at 1259.


[13]   As part of his due process argument, Father appears to argue that DCS failed to

       notify him about any of the proceedings before the Children were designated

       CHINS on June 26, 2015. In its CHINS petition, DCS alleged that its

       representative contacted Father by telephone on April 30, 2015, concerning the

       circumstances surrounding the removal of the children from Mother.

       Appellant’s App. at 57. On June 18, 2015, a summons and advisement of

       parental rights were sent to Father in South Carolina. On July 6, 2015, Father

       signed and dated an advisement of parental rights regarding CHINS

       proceedings. Id. at 124. The chronological case summary shows that after he

       became aware of the CHINS proceedings, he requested and received counsel

       through the public defender’s office, and the trial court vacated a default

       hearing, proceeded with pretrial conferences on September 18 and October 2,

       2015, and held a factfinding hearing on October 26, 2015.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016   Page 7 of 15
[14]   Father asserts that even if notice was established, he was nevertheless denied

       due process by the fact that the CHINS determination had already been made

       before the trial court conducted his factfinding hearing. He cites as support In re

       S.A., 15 N.E.3d 602, 610 (Ind. Ct. App. 2014), clarified on reh’g, 27 N.E.3d 287

       (2015), trans. denied (2015). In S.A., DCS removed a child from the mother after

       a report that the mother was using heroin and was in a violent relationship with

       her boyfriend. The child was placed with the grandmother. Id. at 605. DCS

       filed a CHINS petition and attempted to contact the child’s father via

       Facebook. Id. The father was on active duty in the U.S. Navy and was

       stationed in Texas. When he became aware of the proceedings, he requested

       counsel, denied the CHINS allegations, and sought to establish paternity.

       Before the paternity test results were available, the trial court adjudicated the

       child a CHINS. Once paternity was established, the father requested a

       factfinding hearing. Meanwhile, the father moved back to Indiana and had

       daily supervised visitation with the child. Id. at 606. After the factfinding

       hearing, the trial court issued an order continuing the CHINS adjudication.

       The father appealed, claiming insufficiency of evidence, and this Court reversed

       on sufficiency grounds but addressed sua sponte its due process concerns based

       on the fact that the child had been adjudicated a CHINS “as to [the] father”

       before the father had his factfinding hearing. Id. at 608-10. The S.A. court

       concluded that although the CHINS determination focuses on the condition of

       the child and should therefore not be issued as to a specific parent, a separate

       analysis is necessary where allegations are being made against both parents and

       one of them denies those allegations. Id. at 609 (citing N.E., 919 N.E.2d at 105-
       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016   Page 8 of 15
       06 and K.D., 962 N.E.2d at 1256-57). 3 In addressing its reasons for continuing

       the child’s CHINS status, the trial court emphasized the father’s post-traumatic

       stress disorder, failure to establish paternity sooner, and inexperience in

       parenting. Id.


[15]   At first glance, S.A. bears factual similarities to this case: an out-of-state father,

       a CHINS designation before the father’s factfinding hearing, and allegations of

       shortcomings by each of the parents. However, here, the CHINS petition did

       not raise any allegations against Father other than his inability to protect the

       Children while they were in Mother’s care. 4 Also, Father wanted only

       unsupervised visits in South Carolina. Most importantly, Father expressly

       waived the factfinding and now complains that the continuing of the CHINS




       3
           On rehearing, the S.A. court clarified its original opinion as follows:

               When the CHINS adjudication can involve both parents at the same time, it should involve both
               parents at the same time so there is one adjudication as to all facts pertaining to the entire
               matter. If multiple hearings are unavoidable, then the trial court should, if at all possible, refrain
               from adjudicating the child a CHINS until evidence has been heard from both parents. And if
               an adjudication is unavoidable before evidence has been heard from the second parent, then the
               trial court must give meaningful consideration to the evidence provided by the second parent in
               determining whether the child remains a CHINS.
       S.A., 27 N.E.3d at 292-93 (internal citation and quotation marks omitted), opinion on reh’g.


       4
         As for the Children’s report of Father smoking marijuana and fighting with his girlfriend, these allegations
       were not specified in the CHINS petition but were considered as part of Father’s parent participation order.
       To the extent that Father now objects on the basis of hearsay, we find that he has failed to preserve this
       alleged error and that hearsay is nevertheless admissible during a dispositional hearing. See In re Des.B., 2
       N.E.3d 828, 834 (Ind. Ct. App. 2014) (“Failure to object to the admission of evidence at trial normally results
       in waiver and precludes appellate review.”); see also K.D., 962 N.E.2d at 1259 (stating that at dispositional
       hearing, court can admit evidence otherwise excludable as hearsay).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016                    Page 9 of 15
       designation amounts to a denial of his right to be heard in a meaningful time

       and meaningful manner.


[16]   We disagree. Due process required the trial court to conduct a factfinding

       hearing, which it did. At the beginning of the factfinding hearing, Father’s

       counsel stated, “Judge, I’d spoken with my client extensively, he’d like to enter

       a waiver to the CHINS case today.” Tr. at 5. 5 The factfinding hearing afforded

       Father the opportunity to contest the CHINS determination and to present

       evidence that he was neither using marijuana nor engaging in any

       confrontational or abusive conduct toward his girlfriend. By waiving the right

       to present evidence during that hearing, he forfeited that opportunity. Based on

       the foregoing, we conclude that Father was not denied due process.


       Section 2 – The findings and evidence are sufficient to support
       the trial court’s decision to continue the Children’s placement
                                   with Aunt.
[17]   Father challenges the sufficiency of the findings and evidence to support the

       CHINS placement determination. When reviewing the sufficiency of evidence,

       we give due regard to the trial court’s ability to assess the credibility of

       witnesses. In re Des.B., 2 N.E.3d 828, 836 (Ind. Ct. App. 2014). We neither

       reweigh evidence nor judge witness credibility; rather, we consider only the




       5
         At the dispositional hearing on December 11, 2015, Father’s counsel stated with respect to the Children’s
       placement with Aunt, “We have a father that wants the girls. The reason that he waived was that he wanted
       [them] to stay with their aunt.” Id. at 23.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016           Page 10 of 15
       evidence and reasonable inferences most favorable to the trial court’s decision.

       K.D., 962 N.E.2d at 1253. 6 Where the trial court issues findings of fact and

       conclusions thereon, we apply a two-tiered standard of review. In re R.P., 949

       N.E.2d 395, 400 (Ind. Ct. App. 2011). We consider first whether the evidence

       supports the findings and then whether the findings support the judgment. Id.

       We will set aside the trial court’s findings and conclusions only if they are

       clearly erroneous and a review of the record leaves us firmly convinced that a

       mistake has been made. Id. “We must accept the ultimate facts as stated by the

       trial court if there is evidence to sustain them.” Id.


[18]   Father challenges the sufficiency of the findings with respect to the Children’s

       placement with Aunt, characterizing them as merely boilerplate. Indiana Code

       Section 31-34-19-10(a) requires the trial court to include in the dispositional

       decree written findings and conclusions upon the record concerning the child’s

       needs for “care, treatment, rehabilitation, or placement” and the efforts to

       “reunite the child with the parent, guardian, or custodian.” 7 (Emphasis

       added.) Subsection (b) of the statute allows the trial court to incorporate into




       6
         In his brief, Father claims that “the deferential standard of review does not have any legitimate foundation
       under Indiana Law.” Appellant’s Br. at 12. Citing a law review article as support, he posits that we should
       apply a de novo standard when reviewing CHINS determinations. We are bound by our supreme court’s
       precedent. Grabill Cabinet Co., v. Sullivan, 919 N.E.2d 1162, 1167 (Ind. Ct. App. 2010).


       7
         The statute also requires the trial court to issue findings on the need for the participation by the parent,
       guardian, or custodian in the child’s care plan; efforts to prevent removal; the family services offered and
       provided; the court’s reasons for the disposition, and whether the child has dual status under the statute. Ind.
       Code § 31-34-19-10(a)(2) through -(a)(6). Father does not challenge the trial court’s findings on these
       matters.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016               Page 11 of 15
       the dispositional decree a finding or conclusion from the predispositional

       report.


[19]   Here, the trial court ordered that the children “continue[] in current placement”

       in “relative care,” with a permanency plan of “reunification with parent(s).”

       Appellant’s App. at 48. The dispositional order incorporated Father’s parent

       participation order and expressly adopted DCS’s recommendations as listed in

       the predispositional order. Id. These include the following placement

       recommendations: 8


                a. …. The Children have been placed with Aunt who is their
                maternal great-aunt.

                b. …. This is the least restrictive placement for [] the Children as
                the placement is capable of meeting the children’s needs.

                c. …. This least interferes with the family autonomy for the
                Children not only because the placement is with their maternal
                great-aunt, but also because the environment is safe and stable.

                d. …. This [is] the least disruptive family life for the Children
                because this environment provides safety, stability and allows the
                Children to still have a connection to their family.

                e. …. This is the least restraint on the freedom of [] the Children
                as well as Mother since this placement allows Mother to visit
                with the children. The placement also supervises the visits
                between the Children and Mother which allows for visits to
                happen more frequently.


       8
         To the extent that the predispositional report, dispositional order, and other court documents contain
       proper names, we have replaced those references with the designations indicated earlier in this opinion.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016             Page 12 of 15
               f. …. The placement of the Children provides reasonable
               opportunity for the Children because it is a relative placement
               and the relative continues to promote the closeness of Mother
               and the Children.

               g. …. The placement is consistent with the safety and best
               interests of the Children because the placement provides an
               environment that is safe and provides stability.


               3. Placement with the Children’s suitable and willing blood or
               adoptive relative caretaker, including a non-custodial parent,
               grandparent, aunt, uncle or adult sibling has been considered and
               placed with [relative]. A criminal history check has been
               conducted and the results of the check are as follows:
               Aunt:
               A criminal history check has been conducted and the results of
               the check are as follows:
               Criminal history checked was appropriate, and the Children were
               able to be placed with this relative.
               Finger prints: Qualified
               Sex offender: No history
               Criminal history: No history


       Id. at 97-98.


[20]   These findings are sufficient to support the Children’s continued placement

       with Aunt. As for the evidence supporting the placement decision, Father was

       afforded the opportunity to present evidence to contest the Children’s continued

       placement with Aunt instead of with him but forfeited it when he waived

       factfinding. He cannot now complain that the trial court failed to consider his

       caregiving qualities as compared to Aunt’s.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016   Page 13 of 15
[21]   Finally, Father argues that, for all practical purposes, the CHINS finding will

       result in the termination of his parental rights. We disagree. The transcript

       from the dispositional hearing reveals that the trial court attempted to

       accommodate and give helpful advice to Father as to how he can avoid that

       precise outcome:


               THE COURT: Well, here’s what I’m gonna do. I’m, I’m not
               gonna authorize unsupervised … Well, I’m not gonna order
               unsupervised parenting time for father. I’ll put the authorization
               out there for him to have unsupervised time. When, on the, on
               positive recommendations of DCS, Guardian ad Litem and
               service providers, but I’m gonna leave it to the team to decide
               when that’s appropriate and, right, now, sir, you’re … as it stands
               now, you can’t take the girls back to South Carolina …. You can
               come up here and visit.

               ….

               Okay. Sir, I suggest that you continue to talk to your children on
               the phone. Try and schedule as many visits up here as you can.
               Trying to re-establish that relationship.

               ….

               I’m gonna direct you to talk to your attorney. I understand your
               position. Right now, the decision I’m making, I understand that
               you’re their father and it may be that, at some point, we are
               sending those kids to South Carolina, but I need a little bit more
               information …

               ….

               You need to participate in services, you need to stay in phone


       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016   Page 14 of 15
               contact with your, your kids, and when you’re in Indianapolis,
               you need to schedule visits and we’ll see where we are.


       Tr. at 22, 25-26.


[22]   Simply put, Father was not denied due process. He was given the opportunity

       to be heard, and he forfeited the opportunity by waiving factfinding. The

       findings and evidence are sufficient to support the Children’s continued

       placement with Aunt. Accordingly, we affirm.


[23]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1601-JC-9 | August 12, 2016   Page 15 of 15
