MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jan 08 2019, 9:08 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Roberta Renbarger                                        Curtis T. Hill, Jr.
Renbarger Law Firm                                       Attorney General
Fort Wayne, Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of J.S. and M.S.                           January 8, 2019
(Minor Children),                                        Court of Appeals Case No.
                                                         18A-JC-1791
Children in Need of Services,
                                                         Appeal from the Wells Superior
                                                         Court
and
                                                         The Honorable Kenton W.
P.W. (Mother) and J.W.                                   Kiracofe, Judge
(Stepfather),                                            Trial Court Cause Nos.
Appellants-Respondents,                                  90C01-1802-JC-2, -3

        v.

Indiana Department of Child
Services,
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019                  Page 1 of 13
      Crone, Judge.


                                                    Case Summary
[1]   P.W. (“Mother”) and J.W. (“Stepfather”) (collectively “Appellants”) appeal a

      trial court order adjudicating Mother’s sons, J.S. and M.S. (collectively “the

      Children”), as children in need of services (“CHINS”). They challenge the

      sufficiency of the evidence to support the CHINS determination and raise a due

      process argument concerning J.S.’s placement. We affirm.


                                      Facts and Procedural History
[2]   Following her divorce from P.S. (“Father”),1 Mother was awarded physical

      custody of J.S. (born in 2004) and M.S. (born in 2008). In 2017, the Children

      were living with Mother and Stepfather. Early that year, Appellants discovered

      that J.S. had been viewing online pornography. In November 2017, M.S.

      disclosed to Appellants that J.S. had been molesting him for a few months.

      When Stepfather confronted J.S. with M.S.’s allegations, he became physical

      with J.S., knocking him off his feet. Appellants immediately contacted Father,

      who took J.S. to his house temporarily. Meanwhile, Appellants decided that

      the Children would not be left together except under supervision and that they

      would install alarms on their bedroom doors. In the middle of January, Father




      1
          Father is not participating in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 2 of 13
      called Weber and Associates to schedule initial intake appointments for

      counseling for the Children. Tr. Vol. 2 at 23.


[3]   On January 20, 2018, the Indiana Department of Child Services (“DCS”)

      received a report that J.S. had molested M.S. over a three-month period and

      that Mother had failed to seek services for the Children. That same day, DCS

      Family Case Manager (“FCM”) Lindsey Feinberg visited Appellants’ home to

      conduct an assessment. The Children were not home, and Appellants indicated

      that they were both at Father’s house. When FCM Feinberg attempted to

      discuss the allegations with Appellants, Stepfather told her that they would

      neither speak to her nor allow her to interview the Children until they had

      consulted their attorney. When she walked through the home, she saw no signs

      of any alarms on the Children’s bedroom doors. Before she left, she completed

      a safety plan specifying that Appellants must maintain contact with her, keep

      the Children separated, and obtain counseling services for each child. The next

      day, Stepfather contacted FCM Feinberg and told her about the pornographic

      website that J.S. had been visiting. FCM Feinberg told Stepfather that per DCS

      protocol, both boys needed to undergo a forensic interview.


[4]   On January 22, 2018, FCM Feinberg contacted Mother, who told her that she

      had set up counseling appointments for the Children at Weber and Associates.

      Later that day, Stepfather told FCM Feinberg that the Children would be going

      for counseling appointments at Phoenix and Associates (“Phoenix”). FCM

      Feinberg reminded Stepfather about the Children’s need for forensic interviews,

      and Stepfather told her that Appellants’ attorney (“Counsel”) would be

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 3 of 13
      handling the scheduling of forensic interviews. FCM Feinberg also attempted

      to contact Father but was unsuccessful.


[5]   Meanwhile, Counsel contacted FCM Feinberg and indicated preferences

      concerning the times, location, and personnel involved in conducting the

      forensic interviews. Counsel also requested that there be no police presence at

      the interviews, which DCS declined, and demanded that the interviews be

      conducted after regular school hours. FCM Feinberg arranged the interviews at

      the requested location, scheduled them for January 24, 2018, and notified

      Appellants and Counsel. Stepfather indicated that he did not want the forensic

      interviews to take place until the Children were in counseling. Counsel said

      that the interviews were scheduled on too short of notice and wanted them to

      be conducted at her law office instead. DCS denied the request but rescheduled

      the interviews for February 1, 2018, at Appellants’ previously requested

      location. The Children did not attend the forensic interviews as scheduled, and

      DCS filed a motion to compel conduct.


[6]   On February 5, 2018, the trial court issued orders to comply with the DCS

      investigation. DCS rescheduled the forensic interviews for February 7, 2018.

      Mother brought M.S. for his interview as scheduled, but J.S. did not attend his

      interview. During M.S.’s interview, he disclosed that J.S. had repeatedly forced

      him to perform oral sex on him, to the point that M.S.’s mouth hurt. He also

      reported that J.S. performed anal intercourse on him and showed him a

      pornographic video. M.S. indicated that J.S. had threatened him and ordered

      him not to disclose the molestation. The assaults took place over a two- to

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 4 of 13
      three-month period inside the Children’s house or inside a barn on their

      property. M.S. also revealed that Stepfather had punched J.S. to the floor and

      kicked him when he confronted J.S. about the sexual assault. He also revealed

      that on previous occasions when Stepfather had spanked him, he left red marks

      and it hurt to sit down.


[7]   The day after M.S.’s forensic interview, DCS filed a petition to remove and

      detain the Children. Meanwhile, FCM Feinberg made further attempts to

      contact Father. The trial court granted DCS’s petition and signed an

      emergency protective custody order for both boys, who were then taken from

      their schools. J.S. was placed at Pierceton Woods in an inpatient treatment

      program designed to prevent relapse by juvenile sex offenders. M.S. was placed

      in foster care. That same day, Father returned FCM Feinberg’s call and

      reported that he had not returned her previous phone calls because Appellants

      had told him to have no contact with DCS. When asked, he told FCM

      Feinberg that he had a brother and a sister who might serve as relative

      placements.


[8]   On February 9, 2018, DCS filed CHINS petitions as to J.S. and M.S. A few

      days later, M.S. was removed from foster care and was placed with Father. He

      participated in counseling at Phoenix, home-based services with Father, and

      supervised visitation with Mother. In March 2018, DCS petitioned to change

      J.S.’s placement to an inpatient program at Redwood due to a couple missed

      medication incidents at Pierceton Woods. The court granted the petition

      without a hearing, but after an investigation into the reasons for the missed

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 5 of 13
       medication doses, J.S. was allowed to remain at Pierceton Woods, where his

       caseworkers report that he is doing well and is advancing more rapidly than

       most other juveniles in the program.


[9]    After a multi-day factfinding hearing, on June 27, 2018, the trial court issued an

       order with findings of fact and conclusions thereon adjudicating J.S. and M.S.

       as CHINS. Following a July 9, 2018 dispositional hearing, Mother was

       ordered to complete a parenting assessment and psychological evaluation and

       to attend all scheduled visitations with the Children. Stepfather failed to attend

       the July hearing and had his dispositional hearing in August. The dispositional

       decree as to Stepfather is not included in the record. Appellants now appeal.

       Additional facts will be provided as necessary.


                                      Discussion and Decision

         Section 1 – The evidence is sufficient to support the CHINS
                               determination.
[10]   Appellants challenge the sufficiency of the evidence to support the CHINS

       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 evidence and reasonable

       inferences most favorable to the trial court’s decision. In re K.D., 962 N.E.2d

       1249, 1253 (Ind. 2012). Where the trial court issues findings of fact and

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


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 6 of 13
       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. Appellate courts generally grant latitude and

       deference to trial courts in family law matters. Matter of E.K., 83 N.E.3d 1256,

       1260 (Ind. Ct. App. 2017), trans. denied (2018). This deference recognizes the

       trial court’s “unique ability to see the witnesses, observe their demeanor, and

       scrutinize their testimony, as opposed to this court’s only being able to review a

       cold transcript of the record.” Id.


[11]   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

       N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing

       CHINS status, DCS 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.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 7 of 13
[12]   Although the acts or omissions of one or both parents can cause a condition

       that creates the need for court intervention, the CHINS designation focuses on

       the condition of the children rather than on an act or omission of the parent(s).

       N.E., 919 N.E.2d at 105. In other words, despite 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.” Id. (citations omitted).


[13]   Appellants do not dispute that the Children need care, treatment, or

       rehabilitation. Rather, they maintain that the trial court erred in ultimately

       determining that they are unable or have refused or neglected to supply the

       Children with necessary supervision or treatment in the aftermath absent the

       court’s coercive intervention. Because they do not specifically challenge any of

       the court’s findings, we simply determine whether the unchallenged findings are

       sufficient to support the judgment. T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d

       104, 110 (Ind. Ct. App. 2012), trans. denied.


[14]   In challenging the trial court’s determination that the Children were unlikely to

       receive necessary treatment absent its coercive intervention, Appellants claim

       that by the time DCS became involved, they had already taken every step

       necessary to help the Children except for the actual counseling appointments.

       They point to safety measures such as bedroom door alarms, as well as the

       separation and supervision of the Children. However, FCM Feinberg testified

       that she looked and did not notice any door alarms when she toured

       Appellants’ home two months after M.S.’s disclosures. Tr. Vol. 2 at 89. As for

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 8 of 13
       the Children’s separation, FCM Feinberg testified that at the time of her visit,

       Appellants told her that the boys were both at Father’s for a couple days. Id. at

       90. Mother also cites her ill health as a reason for waiting nearly two months to

       arrange counseling for the Children. The record shows that she indeed suffered

       health issues and a brief hospitalization between the time of M.S.’s disclosures

       and DCS’s involvement. Nevertheless, other than Father’s mid-January call to

       arrange intake appointments at Weber and Associates, it appears that neither

       Father nor Stepfather took any initiative to ensure that the Children received

       treatment/counseling while Mother was indisposed.


[15]   The uncontested findings also reflect that Appellants repeatedly failed to

       cooperate with DCS. From FCM Feinberg’s first visit to their home to the time

       of the factfinding hearing, Appellants were not forthcoming with DCS.

       Stepfather essentially told FCM Feinberg that they would neither talk to her nor

       allow the Children to do so until they secured legal counsel. Appellants also

       instructed Father not to talk to FCM Feinberg and told him that their attorney

       was handling matters. FCM Feinberg accommodated Appellants’ various

       specifications as to the location, time, and certain personnel to be involved in

       the Children’s forensic interviews. Yet, appointments were repeatedly

       rescheduled due to Appellants’ failure to present the Children for those

       interviews. See Appealed Order at 5 (finding 42 describing DCS’s

       “extraordinary efforts” to speak to Children, Mother, and Counsel, and finding

       that “Mother, along with her attorney, thwarted those efforts by not appearing

       at the scheduled interviews on several occasions.”). DCS eventually sought and


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 9 of 13
       obtained an order to compel cooperation, and even then, Appellants’

       compliance was only partial; they brought M.S., but not J.S., to be interviewed.

       As of the date of the factfinding hearing, J.S. had yet to sit for a forensic

       interview. This amounts to a demonstrated unwillingness by Appellants to

       provide necessary treatment for the Children even with the court’s coercive

       intervention.


[16]   As for Mother’s assertion that she could not keep the Children apart and

       present them both for their interviews, the record shows Father and Stepfather

       both to be licensed drivers who could have pitched in to ensure that each boy

       separately arrived at his interview as scheduled. Stepfather testified that he

       ordinarily does not drive the Children but would be available to drive them in

       emergency situations. Tr. Vol. 2 at 28-29. It is difficult to see how this would

       not have qualified as one of those situations.


[17]   With respect to J.S.’s treatment at Pierceton Woods, caseworker Bethany

       Figolah testified that though J.S. has advanced rapidly through the levels of

       treatment, he can advance no further without submitting to a polygraph, which

       he is willing to do but for which Appellants have not granted permission. Id. at

       40-41. In addressing the reasons for placing M.S. with Father after a brief stay

       in foster care, the court relied on M.S.’s assertions that Stepfather had

       physically abused J.S. on the night of the disclosures and had left red marks

       after past spankings of M.S. Appellants claim that M.S.’s descriptions are

       exaggerated and lack corroboration, but as the trial court accurately observed, it

       was Appellants who facilitated the vacuum by repeatedly refusing to present

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 10 of 13
       J.S. for a forensic interview. Appellants’ argument concerning exaggerated

       descriptions is an invitation to reweigh evidence and reassess witness

       credibility, which we cannot do.


[18]   Simply put, the uncontested findings support the trial court’s ultimate

       determination that it is in the Children’s best interests to be removed from the

       home environment, that remaining in the home would be contrary to their

       welfare due to Appellants’ inability to provide care and/or supervision without

       coercive intervention, and that the Children each need “protection that cannot

       be provided in the home.” Appealed Order at 6-7. As such, we affirm the

       CHINS determination.


       Section 2 – Appellants were not denied due process concerning
                              J.S.’s placement.
[19]   Appellants allege that they were denied due process based on DCS’s alleged

       failure to consider placing J.S. with relatives and its decision to place him at a

       facility that is fifty miles from their home. Because every CHINS proceeding

       has the potential to interfere with parents’ rights to raise their children, due

       process protections are vital at every stage of the proceedings. In re L.C., 23

       N.E.3d 37, 40 (Ind. Ct. App. 2015), trans. denied. For this reason, we balance

       “(1) the private interests affected by the proceeding; (2) the risk of error created

       by the State’s chosen procedure; and (3) the countervailing governmental

       interest supporting use of the challenged procedure.” In re G.P., 4 N.E.3d 1158,

       1165-66 (Ind. 2014) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

       Ultimately, due process requires “the opportunity to be heard at a meaningful

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 11 of 13
       time and in a meaningful manner.” K.D., 962 N.E.2d at 1257 (quoting

       Mathews, 424 U.S. at 333).


[20]   Indiana Code Section 31-34-4-2(a) requires that in CHINS proceedings, before

       DCS places the child in an out-of-home placement, it must consider a relative

       placement. Subsection (b) defines a relative placement as “a relative related by

       blood, marriage, or adoption.” Here, the trial court removed the Children from

       Appellants’ care immediately after M.S.’s forensic interview. M.S.’s disclosures

       concerning sexual and physical abuse occurring in Appellants’ home

       underscored the gravity of the circumstances. The court emphasized this in its

       conclusions, stating “that reasonable efforts to prevent or eliminate removal of

       the Children were not required due to the emergency nature of the situation[.]”

       Appellants’ App. Vol. 2 at 23.


[21]   Appellants’ argument appears twofold: that DCS should have placed J.S. in a

       facility closer to their home, and that DCS failed to consider relative placement.

       FCM Feinberg stated that her primary concern was getting J.S. the help he

       needed. Tr. Vol. 2 at 100. With this goal in mind, J.S. was placed in a facility

       with a program specifically geared for juvenile sex offenders, albeit fifty miles

       from Appellants’ home. Though similar facilities may exist that are closer to

       Appellants’ home, the statute makes no requirement as to inpatient treatment in

       proximity to a particular parent. While we appreciate Appellants’ interest in

       having J.S. placed in a convenient location, we believe that in these dire

       circumstances, the State’s countervailing interest in protecting the Children



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 12 of 13
       supports J.S.’s placement in the specialized treatment program offered at

       Pierceton Woods.


[22]   With respect to DCS’s alleged failure to consider a relative placement,

       Appellants admit in their brief that FCM Feinberg “talked to [Father] about

       whether he had relatives in the area [and that Father] disclosed that he had a

       sister and brother in the area.” Appellants’ Br. at 21 (citing Tr. Vol. 2 at 100).

       Their complaint in this regard appears to center on FCM Feinberg’s testimony

       that she discussed the matter only with Father and did not speak to them about

       possible placement with either of their relatives. The statute does not require

       DCS to conduct an exhaustive search for suitable relatives; rather, it simply

       requires that DCS consider relative placement, which it did. Appellants were not

       denied due process due to J.S.’s placement. Accordingly, we affirm.


[23]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019   Page 13 of 13
