MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                FILED
Memorandum Decision shall not be                                      Mar 15 2019, 10:45 am

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


ATTORNEY FOR APPELLANT J.M.                               ATTORNEYS FOR APPELLEE
Jason Meredith                                            Curtis T. Hill, Jr.
Monroe County Public Defender’s Office                    Attorney General
Bloomington, Indiana
                                                          Robert J. Henke
ATTORNEY FOR APPELLANT D.M.                               Deputy Attorney General
                                                          Indianapolis, Indiana
Amy P. Payne
Monroe County Public Defender’s Office
Bloomington, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of A.M. (Minor                           March 15, 2019
Child), Child in Need of                                  Court of Appeals Case No.
Services, and                                             18A-JC-2330
J.M. (Mother) and D.M.                                    Appeal from the Monroe Circuit
(Father),                                                 Court
                                                          The Honorable E. Michael Hoff,
Appellants-Respondents,
                                                          Special Judge
        v.                                                Trial Court Cause No.
                                                          53C06-1708-JC-634
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019                 Page 1 of 14
      Crone, Judge.


                                             Case Summary
[1]   J.M. (“Mother”) and D.M. (“Father”) (collectively “Parents”) appeal the

      adjudication designating their daughter A.M. (“Child”) a child in need of

      services (“CHINS”). They challenge the trial court’s admission of Child’s

      forensic interview on hearsay grounds and assert that the evidence is

      insufficient to support the CHINS determination. We affirm.


                                 Facts and Procedural History
[2]   Parents are the biological parents of Child, born October 12, 2012. Child spent

      a portion of her first three years in relative care with B.S. due to a previous

      CHINS adjudication. Mother completed services, and the CHINS case was

      closed. When Child was four, she lived with Parents at their apartment and

      slept in the same bed with them.


[3]   In August 2017, the Indiana Department of Child Services (“DCS”) received a

      report that Child had accused Father of molesting her. DCS family case

      manager (“FCM”) Catherine Hall went to Parents’ apartment, accompanied by

      police. FCM Hall had a private conversation with Mother, while officers

      remained with Father and Child. According to FCM Hall, Mother did not

      believe Child’s allegations against Father. The officers apprised Father of the

      allegations, and although he denied them, he packed a suitcase and left.




      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 2 of 14
[4]   That same day, Child was taken to Susie’s Place child advocacy center, where

      she underwent a forensic interview. During the interview, she disclosed that

      Father had touched her breasts, vagina, and buttocks while she was in bed with

      him and Mother. FCM Hall, a police detective, and a victim advocate observed

      a live feed of the interview from another room. FCM Hall subsequently had a

      meeting with Parents, and Mother reiterated that she disbelieved Child’s

      allegations. FCM Hall later testified concerning her conversations with

      Mother,


              [W]e have some serious safety concerns if you do not believe
              your daughter. How can you keep your daughter safe if you do
              not believe her? Um, she’s disclosing that her father did this and
              then, of course, I went through the whole of reasons of why, ah,
              based upon her previous history with us that she had been
              previously ruled as the one parent who needed help and
              assistance. That [Father] was the more stable parent and now he
              was leaving the home, she was left to do this, and then she didn’t
              believe her daughter. At that point, we no longer felt that she
              could keep this child safe. So the child was removed from both
              their cares.


      Tr. Vol. 1 at 41-42. Child was placed with B.S., who had previously adopted

      two of Child’s older siblings.


[5]   DCS filed a petition seeking to have Child designated a CHINS. The CHINS

      allegations included child molesting by Father, Mother’s presence during the

      alleged molestations, and Mother’s neglect/disbelief of Child’s allegations.

      Father was legally prohibited from visiting Child due to a protective order.

      Child initially had therapeutic supervised visits with Mother. The visits

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 3 of 14
      temporarily ceased, but Mother filed a motion to reinstate, which the trial court

      granted. Mother’s therapeutic supervised visits are once a week for

      approximately two hours.


[6]   DCS sought and was granted a child hearsay hearing, seeking to introduce at

      the factfinding hearing the abuse disclosures that Child had made during her

      forensic interview. After the child hearsay hearing, the trial court concluded

      that Child’s statements bore sufficient indications of reliability and that Child

      was unavailable to testify at the factfinding hearing. At the factfinding hearing,

      the trial court took judicial notice of other DCS orders involving Parents.

      These include four previous termination orders (two voluntary and two

      involuntary) concerning Mother’s older children and one previous termination

      order involving Father.1


[7]   The trial court adjudicated Child a CHINS. In an order with findings of fact

      and conclusions thereon, the court continued Child in her relative placement.

      Parents now appeal. Additional facts will be provided as necessary.




      1
          Those termination orders are not included in the record before us.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 4 of 14
                                       Discussion and Decision

            Section 1 – The trial court acted within its discretion in
                     admitting Child’s hearsay statements.
[8]   Parents challenge the admission of Child’s hearsay statements alleging that

      Father molested her. The admission of evidence is a matter entrusted to the

      trial court’s sound discretion. In re S.L.H.S., 885 N.E.2d 603, 614 (Ind. Ct.

      App. 2008). We will reverse an evidentiary ruling only on a showing of an

      abuse of discretion, meaning that the trial court’s decision is against the logic

      and effect of the facts and circumstances before it. Id. “The fact that evidence

      was erroneously admitted does not automatically require reversal, and we will

      reverse only if we conclude the admission affected a party’s substantial rights.”

      In re A.J., 877 N.E.2d 805, 813 (Ind. Ct. App. 2007), trans. denied (2008).


[9]   Our General Assembly has enacted legislation geared specifically to the use of a

      child’s hearsay statements in CHINS proceedings.2 Indiana Code Section 31-

      34-13-2 provides that a statement or videotape made by a child under age

      fourteen is admissible as evidence in a CHINS proceeding if certain

      requirements are met. Indiana Code Section 31-34-13-3, known as the Child

      Hearsay statute, lists those requirements, reading in pertinent part,




      2
        Parents cite the protected persons statute, Indiana Code Section 35-37-4-6, as instructive in ascertaining
      whether Child’s statements are reliable. “The protected persons statute applies to criminal proceedings where
      the introduction of statements by child victims is at issue. A CHINS proceeding is civil in nature, and thus
      the protected persons statute is not applicable[.]” In re J.Q., 836 N.E.2d 961, 964 n.1 (Ind. Ct. App. 2005).

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019                  Page 5 of 14
               A statement or videotape described in section 2 of this chapter is
               admissible in evidence in an action to determine whether a child
               … is a child in need of services if, after notice to the parties of a
               hearing and of their right to be present:


               (1) the court finds that the time, content, and circumstances of
               the statement or videotape and any other evidence provide
               sufficient indications of reliability; and


               (2) the child:


               ….


               (C) is found by the court to be unavailable as a witness because:


               (i) a psychiatrist, physician, or psychologist has certified that the
               child’s participation in the proceeding creates a substantial
               likelihood of emotional or mental harm to the child; [or]

               ….

               (iii) the court has determined that the child is incapable of
               understanding the nature and obligation of an oath.


[10]   With respect to the “time, content, and circumstances” of Child’s hearsay

       statements, Parents appear to limit their argument to the reliability of the

       content. That said, we note that Child underwent her forensic interview the

       same day that her allegations were reported to DCS and that the interview was

       conducted in a neutral setting, using nonleading questions. Parents claim that

       Child’s inability to recall when or how often she was molested renders her

       hearsay statements unreliable. We disagree. Although Child could not recall

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 6 of 14
       when the incidents began and ended, she disclosed that she was molested more

       than once, and forensic interviewer Kelly Hunkler explained that Child’s

       inability to pinpoint the timeframe or frequency of the alleged molestations was

       typical for a four-year-old. See Tr. Vol. 1 at 60 (testimony that “a four year old

       can typically tell you the who, the what, and the where, but they’re not so good

       at sequence or when.”). When asked if there was “anything atypical about the

       way [Child’s] interview went,” Hunkler responded, “No.” Id. at 61.


[11]   Parents also point to the lack of specificity of some of Child’s responses. For

       example, Child did not use clinical or mature terms for body parts. However,

       she could identify body parts that Father had allegedly touched. Similarly,

       Child did not specify whether the fondling took place over or underneath her

       pajamas. However, she did disclose that she never wore a pajama top or

       underwear to bed and that she sometimes woke up without her pajama

       bottoms. Parents both corroborated the information concerning Child’s

       nighttime attire and the fact that she slept in their bed with them.


[12]   Parents also contend that Child’s statements were unreliable because she could

       not tell the difference between the truth and a lie. Hunkler testified as to this

       issue in part,


               When I spoke with [Child] I asked her that if we could agree to
               only talk about things that were real and that really happened, so
               that’s things that she experienced, um, that she heard with her
               ears, saw with her eyes, tasted with her mouth, smelled with her
               nose or felt with her body and that I asked her, um, we could



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 7 of 14
               agree to only talk about things that really happened and she
               agreed.


       Id. at 59. Hunkler further explained that Child’s statements were consistent

       throughout the interview, though not particularly detailed, which is typical for a

       child her age. Id. at 60-61.


[13]   With respect to reliability, Parents also focus on information provided by

       psychologist Dr. Julia Gadlage, who conducted a clinical assessment and

       testified at the child hearsay hearing. Dr. Gadlage was specifically tasked with

       ascertaining whether Child would be deemed unavailable to testify at the

       upcoming factfinding hearing. Parents do not challenge the issue of Child’s

       unavailability pursuant to the statute, but they cite the doctor’s findings as they

       relate to the issue of reliability. In her written report, Dr. Gadlage explained

       that Child did “not have the ability to understand the nature and obligation of

       an oath.” DCS Ex. A at 11. At the child hearsay hearing, she testified that

       when she questioned Child concerning Father or any past abuse, Child either

       ignored her completely or said, “I don’t know.” Tr. Vol. 1 at 77. She described

       Child as emotionally unstable and fragile, with trauma symptoms resembling

       post-traumatic stress disorder. Id. at 78-79. She expressed concern that Child

       could not verbalize the difference between the truth and a lie but found that

       Child could “describe prior things that have happened to her.” Id. at 91.


[14]   Parents essentially contend that Child’s lack of understanding of certain terms

       makes her reliability impossible to discern, even for professionals. We disagree.

       Parents’ argument is tethered to semantics, that is, whether Child can apply
       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 8 of 14
       terms such as oath, truth, and lie, without regard to her tender age. We find

       such an application to be rigid and unpersuasive. The information provided by

       Hunkler and Dr. Gadlage shows Child’s statements to be sufficiently reliable for

       a four-year-old child. As such, we find no abuse of discretion in the admission

       of Child’s hearsay statements.


         Section 2 – The evidence is sufficient to support the CHINS
                               determination.
[15]   Parents also 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

       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

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 9 of 14
       scrutinize their testimony, as opposed to this court’s only being able to review a

       cold transcript of the record.” Id.


[16]   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.


[17]   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).



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 10 of 14
[18]   Parents do not specifically challenge any of the court’s findings. As such, 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. The unchallenged findings include the following:3


                 2. On or about August 6, 2017, Child disclosed that she had
                 been sexually molested when Father fondled her in Parents’ bed,
                 where Mother, Father and Child were sleeping. During the DCS
                 investigation of the allegations the Mother informed the DCS
                 that she did not believe that Father had fondled Child. The DCS
                 concluded that Child was unsafe in Parents’ home as Father had
                 molested her, and Mother was unlikely to protect Child since
                 Mother did not believe the child abuse had happened.


                 3. Child was removed from Parents[’] home on August 6, 2017,
                 and placed in a kinship placement in the home of B.S. Child has
                 resided continuously in the home of B.S. since her removal from
                 Parents’ home. Also residing in that home are [two of] Child’s
                 half siblings, …. the biological children of Mother.


                 4. Mother previously voluntarily terminated her parental rights
                 to two of her children. In December, 2009, the parental rights of
                 Mother as to two other children who were biological siblings of
                 Child were involuntarily terminated.


                 5. The parental rights of Father as to one child who was a
                 biological sibling of Child w[ere] involuntarily terminated.


                 6. Child’s care was the subject of an open DCS case in Monroe
                 County from 2012 through 2016. The case was closed after



       3
           The findings include proper names. We refer to the relevant persons as previously designated.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019                  Page 11 of 14
        Mother successfully complied with the steps required of her by
        the DCS.


        7. The Court previously found in the June 11, 2018 Order
        Finding Child to be in Need of Services that the CHINS petition
        had been proven by the greater weight of the evidence; that
        Father had sexually molested Child as set out in the CHINS
        petition; that Mother does not believe that the illegal fondling of
        Child by Father occurred; and Mother is in a poor position to
        protect Child from further harm. The Court further found that
        because Mother does not believe Child’s report of Father
        fondling her, Mother is unwilling or unable to keep Child safe.
        She is not capable of caring for Child without assistance. The
        Court reaffirms those findings.


        8. Child needs a safe home environment that cannot be provided
        by Parents. She should remain in the current foster home
        placement with B.S. She needs appropriate outpatient treatment
        from an individual mental health practitioner. She requires
        supervised visitation with Mother and transportation to and from
        that visitation. She should not have contact with Father unless
        and until it is recommended by the family team, and then any
        contact should be supervised. The Court notes that there is at
        this time a protective order entered in a criminal case that
        prohibits Father from having any contact with Child.


        9. Because of the emergency nature of Child’s situation in
        Parents’ home, the DCS was unable to provide services as an
        alternative to the immediate removal of Child from Parents’
        home.


        10. As stated in the DCS Summary of DCS Recommendations
        in its Predispositional Report, both parents have had extensive
        services provided to them. Because both parents have previously
        had their parental rights to other children who are biological

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 12 of 14
               siblings of Child involuntarily terminated the DCS is not required
               to make reasonable efforts to reunify Child with Parents, or to
               preserve the family.


               11. It is not clear what the relationship between Parents is now.
               They were residing as a married couple. When Child was
               removed from their home Father voluntarily moved out.
               However there is evidence that they continue to meet and spend
               time together (as they have a right to do). Mother appears to
               want to continue her marital relationship as it was before Child
               was removed. Father did not testify, so his intention is not
               known. Keeping Child safe in a home with both her parents
               would be difficult and hard to assure for the reasons set out
               herein; Father molested her and Mother doesn’t believe it.


               12. Child has been out of Parents’ home for four years, and she
               is only five years old. She needs stability and to know where her
               home is, a point emphasized by the CASA. She should not live
               in Parents’ home. Some of the deficiencies in the foster home,
               such as cleanliness and clutter, could be improved on, but Child
               should remain in that home so long as it is an option for
               adoption/long term placement.


       Appealed Order at 1-3.


[19]   These unchallenged findings stand as proven and are sufficient to support the

       CHINS determination. Sadly, Mother’s connection with Father and desire to

       work on the marital relationship, combined with her skepticism concerning

       Child’s allegations against Father, underscore the need for the court’s coercive

       intervention to protect Child from physical and emotional danger. We find no

       error here. Consequently, we affirm.



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 13 of 14
[20]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2330 | March 15, 2019   Page 14 of 14
