                                                                            FILED
                                                                        Dec 20 2019, 8:53 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General

                                                           Robert J. Henke
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of Br.B., M.B., and                          December 20, 2019
BA.B. (Minor Children),                                    Court of Appeals Case No.
Children in Need of Services,                              19A-JC-1301
and                                                        Appeal from the Marion Superior
B.B. (Father) and S.B. (Mother),                           Court
                                                           The Honorable Mark A. Jones,
Appellants-Respondents,
                                                           Judge
        v.                                                 The Honorable Diana J. Burleson,
                                                           Magistrate
Indiana Department of Child                                Trial Court Cause Nos.
Services,                                                  49D15-1901-JC-72, -73, -74
Appellee-Petitioner



Crone, Judge.




Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019                           Page 1 of 15
                                              Case Summary
[1]   B.B. (“Father”) and his wife, S.B. (“Mother”) (collectively “Parents”), appeal

      the trial court’s determination that their three minor children, Br.B., M.B., and

      BA.B. (collectively “Children”), are children in need of services (“CHINS”).

      Parents argue that the trial court erred in denying their motion to dismiss for

      lack of venue and in admitting certain evidence, and that the Indiana

      Department of Child Services (“DCS”) failed to establish that Children’s needs

      are unlikely to be met without coercive court intervention. We affirm.


                                  Facts and Procedural History
[2]   Father and Mother are the parents of three minor children: Br.B., born in 2012,

      M.B., born in 2013, and BA.B., born in 2016. Mother is also the parent, and

      Father is the stepparent, of Ma.B., who was born in 2009. In January 2019,

      DCS received a report of child abuse or neglect regarding all four children.

      DCS Family Case Manager (“FCM”) Nicole Gibney interviewed Parents and

      the three oldest children and substantiated the report as to Father. All four

      children were removed from Parents’ care and placed with relatives. DCS filed

      a petition alleging that all four children are CHINS based on Parents’ failure to

      provide them “with a safe, stable, and appropriate living environment free from

      physical abuse and violence.” Appellants’ App. Vol. 2 at 75.




      Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019    Page 2 of 15
[3]   After a factfinding hearing, the trial court issued an order in which it

      determined that all four children are CHINS based on the following relevant

      findings: 1


                 17. Br.B. … testified at the trial from another part of the building
                 via telecommunication.

                 18. Br.B. does not want to go home because his father is mean.
                 He fed him and his brother worms.

                 19. For discipline, Br.B. says his father washes his and his
                 sister’s mouth out with soap. His father said that he will kill
                 auntie.

                 20. Br.B. wants to go home and live with his mother but not if
                 his father is there.

                 21. Br.B.’s father told him that if he told anybody that he will
                 kick their ass.

                 22. When asked if he liked vegetables, Br.B. answered that he
                 hates his dad.

                 23. Br.B. does not like school because it is right by Father’s
                 house.

                 24. Ma.B. … testified at the trial from another part of the
                 building via telecommunication.

                 25. Ma.B. doesn’t want to see Father because he is dangerous
                 and tried to hurt Ma.B.




      1
          We have replaced references to the parties’ names with the foregoing designations.


      Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019                    Page 3 of 15
        26. Ma.B. elaborated that Father, his stepfather, would not feed
        him when he said he was hungry, and sent him to his room.

        27. According to Ma.B., Father disciplines him with a belt, ruler
        and paddle.

        28. One time Ma.B. was at home watching TV, and Father hit
        him with a belt and left marks on him. The next day Father hit
        him with a ruler, switch, and a paddle. Father said that if Ma.B.
        told anybody he was going to kill him.

        29. Ma.B. wants to go home but only if Father is not there. He
        does not love Father because he is mean to Ma.B.

        30. Spencer Ryan was assigned to work with Father on home
        based case management and Father Engagement.

        31. Father told Mr. Ryan that these stories from the children
        were fabrications by his wife’s mother due to her wanting money.
        He said that grandmother was changing their appearance, buying
        them toys and bribing them.

        32. Father disciplines the children using foods. He bases the
        discipline on what a particular child does not like, for example,
        one doesn’t like sweets and another doesn’t like vegetables.

        33. Mr. Ryan has concerns about Father’s modes of discipline
        and recommends services to help him work on the way he
        disciplines the children.

        34. Father disciplines the children by slapping their fingers, and
        hands; making them eat certain foods.

        35. Father was authorized by the Court to have parenting time
        with his children, but not Ma.B. He refused the parenting time
        because it did not include Ma.B.


Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019        Page 4 of 15
        36. Parents’ home has a trespassing sign, cameras, multiple
        screens showing camera shots, there is a lot of renovation at the
        home – exposed wires, multiple heaters, and the house smelled of
        sawdust.

        37. A home based therapist, Ashlyn Weals, has been working
        with the children since January 22, 2019. She has had 6
        meetings with the children. At the first session all of the children
        were together, and after that she met with them individually.

        38. Ms. Weals met with the children at school.

        ….

        40. The statements made to Ms. Weals show the extent of the
        children’s trauma. The children talk about fear, trauma, they all
        have the same statement of what they are fearful of, and they
        have a lack of coping skills.

        41. Ma.B. and Br.B. expressed that they are afraid to return
        home (they are currently placed with their maternal
        grandmother), they will be punished – extension cord, holding
        cooler filled with water, and picked up by ears and neck.

        ….

        44. Ms. Weals’ therapeutic recommendations for the children:
        they have a high need for ongoing therapy to build up coping
        skills, recognize and verbalize feelings, and process different
        things going on in their lives.

        45. Regarding parenting time, Ms. Weals recommends
        supervised time with Father. Ma.B. feels fear and discomfort
        with Father. The children speak highly of their mother. Br.B.
        and Ma.B. want to live with their mother but not with Father.
        There are no concerns with mother alone, the concern is that the
        parents live together.

Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019       Page 5 of 15
        46. Ma.B. said that testifying in court made him sad, mad and
        uncomfortable. He has had stomach aches and headaches. Yet,
        Father wanted the children to testify, to look him in his eyes and
        tell him they didn’t love him and they were lying.

        47. Father thinks that this situation with his children arose due
        to a disagreement about money with the maternal grandmother
        …. About 5 o[r] 6 years ago when Father and Mother were
        dating, Mother would allow [the maternal grandmother] to claim
        Ma.B. as an exemption on [the maternal grandmother’s] taxes.
        The last time [she] claimed Ma.B. as an exemption on her taxes
        was in 2014. Father does not agree with this arrangement and
        around Thanksgiving last year he let her know that he did not
        agree. Father told [her] that he would not let the children go
        over to her house again. Father said there were “threats
        thrown”.

        48. Father disagrees with [the maternal grandmother] buying the
        children things such as tablets, Jordans, cell phones, name brand
        clothes. The Parents cannot afford to buy these things.

        49. Father is upset that [the maternal grandmother] cuts the
        children’s hair and promises them things. He thinks the children
        have been bribed and coerced into saying things about him.

        50. Father thinks the children need therapy but neither he nor
        Mother [has] taken steps for them to receive therapy.

        51. The children’s physical or mental condition is seriously
        endangered due to Father’s actions which have caused trauma
        and fear in the children, and the children need therapy that they
        have not received prior to this case being filed. Additionally,
        Mother has neglected to protect the children from Father’s
        actions.



Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019        Page 6 of 15
      Appealed Order at 1-3. The trial court also issued a dispositional decree and a

      parental participation order continuing the children’s placement in relative care

      and requiring Parents to participate in certain programs.


[4]   Parents now appeal the CHINS determinations as to Children, but not as to

      Ma.B. Additional facts will be provided below.


                                      Discussion and Decision

            Section 1 – The trial court did not clearly err in denying
                 Parents’ motion to dismiss for lack of venue.
[5]   Indiana Code Section 31-32-7-1 states, “If a child is alleged to be a delinquent

      child or a child in need of services, proceedings under the juvenile law may be

      commenced in the county: (1) where the child resides; (2) where the act

      occurred; or (3) where the condition exists.” This statute addresses venue,

      which has been defined as “[t]he proper or a possible place for a lawsuit to

      proceed, [usually] because the place has some connection either with the events

      that gave rise to the lawsuit or with the plaintiff or defendant.” BLACK’S LAW

      DICTIONARY (11th ed. 2019).


[6]   After DCS rested its case at the factfinding hearing, Parents moved for

      involuntary dismissal pursuant to Indiana Trial Rule 41(B) on the basis that

      DCS had failed to prove venue, i.e., that the children resided, the acts occurred,




      Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019     Page 7 of 15
      or the conditions existed in Marion County. 2 The trial court summarily denied

      the motion. Parents presented their case, DCS called a rebuttal witness, and

      Parents renewed their motion to dismiss. The trial court took the matter under

      advisement but never issued a ruling, so the motion was deemed denied

      pursuant to Indiana Trial Rule 53.4(B). 3


[7]   On appeal, Parents argue that the trial court erred in denying their motion to

      dismiss. We review that ruling under the clearly erroneous standard. In re

      M.D., 906 N.E.2d 931, 932 (Ind. Ct. App. 2009), trans. denied. A ruling is

      clearly erroneous when a “review of the record leaves us with a firm conviction

      that a mistake has been made.” Hardin v. McClintic, 125 N.E.3d 643, 651 (Ind.

      Ct. App. 2019).


[8]   In asserting that DCS failed to prove venue, Parents rely on Baugh v. State, 801

      N.E.2d 629 (Ind. 2004), which reads in pertinent part,


                 The right to be tried in the county in which an offense was
                 committed is a constitutional and a statutory right. Ind. Const.
                 Art. I, § 13; Ind. Code § 35-32-2-1(a) (2000); Alkhalidi v. State, 753
                 N.E.2d 625, 628 (Ind. 2001). Venue is not an element of the
                 offense. Id. Accordingly, although the State is required to prove



      2
          Trial Rule 41(B) states in pertinent part,

               After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court
               without a jury, has completed the presentation of his evidence thereon, the opposing party,
               without waiving his right to offer evidence in the event the motion is not granted, may move for
               a dismissal on the ground that upon the weight of the evidence and the law there has been
               shown no right to relief. The court as trier of the facts may then determine them and render
               judgment against the plaintiff or may decline to render any judgment until the close of all the
               evidence.
      3
          This rule provides that a repetitive motion is deemed denied unless it is ruled upon within five days.


      Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019                                  Page 8 of 15
               venue, it may be established by a preponderance of the evidence
               and need not be proven beyond a reasonable doubt. Id.


      Id. at 631. According to Parents, DCS presented no direct or circumstantial

      evidence “as to where the allegations occurred, where the children resided, or

      where the families’ circumstances existed” and therefore “did not prove that

      Marion County was the proper venue for this matter.” Appellants’ Br. at 25. 4


[9]   We find Parents’ reliance on Baugh misplaced. CHINS proceedings are not

      criminal proceedings, so Parents have no constitutional right to have their case

      tried in any particular county. See Matter of Ma.H., 134 N.E.3d 41, 46 (Ind.

      2019) (noting that CHINS proceedings are “non-criminal”); IND. CONST. art. 1,

      § 13 (“In all criminal prosecutions, the accused shall have the right to a public

      trial, by an impartial jury, in the county in which the offense shall have been

      committed ….”). 5 Moreover, Section 31-32-7-1 does not state, or even suggest,

      that DCS is required to prove venue in a CHINS proceeding, and the statute’s

      venue provisions are permissive, not mandatory. See Dermatology Assocs., P.C. v.

      White, 67 N.E.3d 1173, 1179 (Ind. Ct. App. 2017) (“[W]e will not read into the

      statute that which is not expressed, so it is just as important to recognize what a

      statute does not say as it is to recognize what it does say.”); Romine v. Gagle, 782




      4
       In stating that venue may be established by circumstantial evidence, Parents cite an unpublished
      memorandum decision from another panel of this Court in violation of Indiana Appellate Rule 65(D).
      Appellants’ Br. at 21.
      5
        Indiana Code Section 35-32-2-1(a), also cited in Baugh, is merely a codification of this constitutional venue
      requirement (“Criminal actions shall be tried in the county where the offense was committed, except as
      otherwise provided by law.”).

      Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019                              Page 9 of 15
       N.E.2d 369, 380 (Ind. Ct. App. 2003) (“The term ‘may’ in a statute ordinarily

       implies a permissive condition and a grant of discretion.”), trans. denied. In

       other words, a CHINS proceeding may be commenced (and tried) in a county

       where the child resides, the act occurred, or the condition exists, but it does not

       have to be. 6 Because there is no constitutional or statutory requirement that

       DCS prove venue in a CHINS proceeding, we conclude that the trial court did

       not clearly err in denying Parents’ motion to dismiss.


           Section 2 –Parents have failed to establish that they are
       entitled to reversal based on the admission of certain evidence.
[10]   Parents also contend that the trial court violated their due process rights by

       admitting testimony regarding Father’s sex offender status and the conditions of

       Parents’ home, which they characterize as evidence of unpled allegations that

       was introduced without notice at the factfinding hearing over their objection.




       6
         Indiana Code Section 31-32-1-3 provides that in juvenile court cases not “subject to” delinquency
       allegations or criminal charges, “the Indiana Rules of Trial Procedure apply in all matters not covered by the
       juvenile law.” Section 31-32-7-1’s permissive venue provisions are consistent with Indiana Trial Rule 75(A),
       which reads in relevant part,
             Any case may be venued, commenced and decided in any court in any county, except, that
             upon the filing of a pleading or a motion to dismiss allowed by Rule 12(B)(3), the court, from
             allegations of the complaint or after hearing evidence thereon or considering affidavits or
             documentary evidence filed with the motion or in opposition to it, shall order the case
             transferred to a county or court selected by the party first properly filing such motion or pleading
             if the court determines that the county or court where the action was filed does not meet
             preferred venue requirements or is not authorized to decide the case and that the court or county
             selected has preferred venue and is authorized to decide the case.
       Section 31-32-7-2 provides that a change of venue from the county in a juvenile proceeding “may not be
       granted except under” Section 31-32-7-3, which states, “(a) Upon: (1) the juvenile court’s own motion; (2)
       the motion of a child; or (3) the motion of the child’s parent, guardian, or custodian; the juvenile court may
       assign a case to a juvenile court in the county of a child’s residence at any time before the dispositional
       hearing.” Thus, if Children actually did not reside in Marion County and Parents wanted a change of venue
       on that basis, it was their burden to file a motion to make that change.

       Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019                             Page 10 of 15
       DCS characterizes the issue as a garden-variety admissibility of evidence

       question. Indiana Appellate Rule 66(A) states,


               No error or defect in any ruling or order or in anything done or
               omitted by the trial court or by any of the parties is ground for
               granting relief or reversal on appeal where its probable impact, in
               light of all the evidence in the case, is sufficiently minor so as not
               to affect the substantial rights of the parties.


       The trial court’s CHINS order does not even mention Father’s sex offender

       status, and although the order mentions the conditions of Parents’ home in

       passing, those conditions are not cited as a basis for the trial court’s CHINS

       finding. Regardless of how one frames this issue, we find no basis for reversal.


         Section 3 – Parents have failed to establish that DCS did not
          carry its burden on the issue of coercive court intervention.
[11]   DCS alleged that Children are CHINS pursuant to Indiana Code Section 31-34-

       1-1, which provides that a child is a CHINS if, before the child becomes

       eighteen years of age,


               (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:


                        (A) when the parent, guardian, or custodian is financially
                        able to do so; or

                        (B) due to the failure, refusal, or inability of the parent,


       Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019           Page 11 of 15
                        guardian, or custodian to seek financial or other
                        reasonable means to do so; 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.


       “In a CHINS proceeding, DCS bears the burden of proving by a preponderance

       of the evidence that a child meets the statutory definition of a CHINS.” In re

       A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans. denied. 7


[12]   “The purpose of a CHINS adjudication is to protect children, not to punish

       parents.” K.A.H. v. Ind. Dep’t of Child Servs., 119 N.E.3d 1115, 1120 (Ind. Ct.

       App. 2019) (citation and alterations omitted). “A CHINS adjudication is not a

       determination of parental fault but rather is a determination that a child is in

       need of services and is unlikely to receive those services without intervention of

       the court.” Id. “The intrusion of a CHINS judgment … must be reserved for

       families who cannot meet those needs without coercion—not those who merely

       have difficulty doing so.” In re S.D., 2 N.E.3d at 1283, 1285 (Ind. 2014).




       7
        DCS also alleged that two of the Children are CHINS pursuant to Section 31-34-1-2, but the trial court’s
       order does not specify a statute, and both Parents and DCS premise their arguments on Section 31-34-1-1.

       Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019                          Page 12 of 15
[13]   Parents do not challenge the trial court’s finding that Children’s physical or

       mental condition is seriously endangered and that they need therapy to cope

       with the “trauma and fear” caused by Father’s actions and Mother’s failure to

       protect them from those actions. Appealed Order at 3. But they do assert that

       DCS failed to prove that this need is unlikely to be met without coercive court

       intervention. In reviewing a trial court’s CHINS determination, we neither

       reweigh evidence nor judge witness credibility. S.D., 2 N.E.3d at 1286.

       Instead, we consider only the evidence supporting the trial court’s decision and

       the reasonable inferences to be drawn therefrom. Id. No statute expressly

       requires formal findings in a CHINS factfinding order, id., and the trial court

       here entered its findings and conclusions sua sponte. Parents do not challenge

       any of the findings, and thus they stand as proven. Coles v. McDaniel, 117

       N.E.3d 573, 576 (Ind. Ct. App. 2018). Because the trial court did not make a

       finding regarding the need for coercive court intervention, we review that issue

       pursuant to the general judgment standard, under which we will affirm a

       judgment if it can be sustained on any legal theory supported by the evidence.

       S.D., 2 N.E.3d at 1287.


[14]   Parents’ lengthy argument boils down to their contention that no coercive court

       intervention is required because they “voluntarily participated in services prior

       to the trial court’s dispositional decree requiring them to do so.” Appellants’

       Br. at 37. But this contention disregards the unchallenged finding that Parents

       did not take steps for Children to receive the therapy they need during the




       Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019   Page 13 of 15
pendency of the CHINS proceeding. At the factfinding hearing, Father offered

the following rationale for this:


        Q …. Prior to this case starting, you didn’t have any reason to
        believe the kids were in need of therapy. Right?

        A That’s correct.

        Q They [DCS] had not made a bunch of allegations that you
        believed to be untrue at that point in time. Correct?

        A That’s correct.

        Q Now, that this case is opened it might be more apparent that
        they might be in need of therapy. Right?

        A Yes, sir.

        Q Okay. So, the mere fact that you didn’t get therapy for them
        before doesn’t mean that you won’t get it for them in the future.
        Right?

        A That’s right.


Tr. Vol. 2 at 239-40. The trial court was entitled to disbelieve this self-serving

testimony. Indeed, Father’s explanation falls far short of an unequivocal

commitment to get therapy for Children, especially in light of his attempts to

blame their trauma and fear on manipulation by their maternal grandmother, as

well as his desire to have Children testify so that he could “look him in his eyes

and tell him they didn’t love him and they were lying.” Appealed Order at 3.




Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019     Page 14 of 15
[15]   In sum, Parents have failed to establish that DCS did not carry its burden on the

       issue of coercive court intervention. Therefore, we affirm.


[16]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-JC-1301 | December 20, 2019   Page 15 of 15
