MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      Jul 22 2019, 8:38 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
J. Clayton Miller                                         Curtis T. Hill, Jr.
Jordan Law, LLC                                           Attorney General of Indiana
Richmond, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of H.R., Minor                              July 22, 2019
Child Alleged to be a Child in                            Court of Appeals Case No.
Need of Services;                                         19A-JC-144
C.R. (Father),                                            Appeal from the Henry Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Bob A. Witham,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               33C01-1807-JC-90
Services,
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019                      Page 1 of 14
                                            Statement of the Case
[1]   C.R. (“Father”) appeals the trial court’s adjudication of his minor child, H.R.

      (“Child”), as a child in need of services (“CHINS”) and the trial court’s

      termination of his visitation with Child. 1 Father raises two issues for our

      review, which we restate as follows:


                 1.       Whether there was sufficient evidence to support the trial
                          court’s adjudication of Child as a CHINS.

                 2.       Whether the trial court denied Father his right to due
                          process when it terminated his visitation with Child.


[2]   We affirm.


                                     Facts and Procedural History
[3]   Father and H.G. (“Mother”) have one child together, Child, who was born on

      September 8, 2014. Beginning in January 2018, Father had sole custody of

      Child. On July 22, Child’s adult half-sister, F.R. (“Sister”), picked Child up

      from Father. Father told Sister that Child “may have a yeast infection and that

      [Sister] need[s] to go get some medication for it.” Tr. Vol. III at 92. The next

      day, Sister called Child’s pediatrician, who called in a prescription for Child.

      Sister picked up the medication the following day, July 24.


[4]   Sister’s wife, S.R., attempted to put the medication on Child. When Child saw

      that S.R. was about to put the medication on her, she “jumped backwards” and


      1
          Child’s mother does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019     Page 2 of 14
      said, “no, no, no don’t hurt me. I don’t want it to go in my coochie like it does

      at daddy’s house.” 2 Id. Sister then asked Child what she meant, and Child

      said, “the white thing with the knot on the end, it goes in my coochie and it

      hurts me.” Id. at 97.


[5]   Sister then contacted Carrie Matthews, a family case manager (“FCM”) with

      the Indiana Department of Child Services (“DCS”). Sister told FCM Matthews

      that Child “had told her that her dad had touched her in her vagina area[.]” Tr.

      Vol. II at 171. FCM Matthews recommended that Sister take Child to the

      pediatrician’s office.


[6]   Sister made an appointment for Child to see the doctor. Sister did not provide

      any information to the doctor’s office about Child’s allegations but, rather,

      made the appointment “for a checkup of the yeast infection.” Tr. Vol. III at

      122. On July 25, Sister took Child to the pediatrician’s office, and FCM

      Matthews met them there. Once Sister and Child arrived, Amanda Witham, a

      medical assistant, conducted a clinical workup of Child. Child told Witham

      that she “was having burning,” and she pointed “down to her vaginal area and

      toward her bottom or rectum.” Tr. Vol. II at 79. Witham then talked to Child

      while they waited for the nurse practitioner to examine Child. Child told

      Witham that she “didn’t want her daddy to put anything down there anymore

      and again pointed to her vaginal and anal area.” Id.




      2
          Child used the word “coochie” to refer to her “vaginal area.” Tr. Vol. II at 196

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019           Page 3 of 14
[7]   Based on Child’s statements during the exam, FCM Matthews set up an

      appointment for Child to undergo a forensic interview. During the interview,

      the interviewer asked Child if anyone has ever touched her. Child told the

      interviewer that, sometimes before she goes to bed, “daddy puts a white ball

      thing in my coochie.” Ex. 15. The interviewer then asked Child if the white

      thing did anything, and Child stated that it “was bobbing in [her] butt.” Id.

      Child also stated that it “was beeping off and on.” Id. Child further told the

      interviewer that, when Father “pressed a button,” the white thing “went

      mmm.” Id. Child then said that it “felt like brushing my teeth.” Id. The

      interviewer then asked Child if she has an electric toothbrush, and Child stated

      that she does.


[8]   Following Child’s forensic interview, FCM Matthews scheduled an

      appointment for Holly Renz, a sexual assault nurse examiner, to examine Child

      the next day. Meanwhile, FCM Matthews contacted the Henry County

      Sheriff’s Department and informed them of Child’s allegations against Father.

      FCM Matthews then contacted Father and asked Father to go to the Sheriff’s

      Department. Father complied, and officers interviewed him. Based on the

      interview and the information that the officers had received from DCS,

      Detective David Pierce obtained a warrant to search Father’s house for “all

      vibrators, massagers, sex toys, [and] sexual devices, including a white in color

      vibrator or massager.” Ex. at 14. Detective Pierce did not find any sex toys,

      but he found 196 grams of marijuana in jars that were in unlocked cabinets in

      various rooms of the house.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 4 of 14
[9]    On July 26, Renz examined Child. During the exam, Renz asked Child “if

       anyone had ever touched her coochie for no good reason.” Tr. Vol. II at 197.

       Child told Renz that “her daddy had touched her coochie” with “the white

       thing.” Id. Renz then asked Child if anyone had ever touched her butt for no

       good reason, and Child responded: “my daddy puts his finger in my butt.” Id.


[10]   That same day, DCS filed a petition alleging that Child is a CHINS.

       Specifically, DCS alleged that Father had “committed acts on [Child] that

       appear to be sexual acts involving a sexual aid” and that officers had located a

       large amount of marijuana in Father’s house. Appellant’s App. Vol. II at 17.

       DCS removed Child from Father and placed her with Sister. Thereafter, on

       August 1, the forensic interviewer conducted a second interview of Child.

       During that interview, Child told the interviewer that she had asked Father to

       throw the white thing away because “it hurts people.” Ex. 15.


[11]   On August 8, Father filed a request for parenting time, which the court denied.

       However, the court found that the issue “may be revisited following [C]hild’s

       beginning of therapy and therapist’s recommendation for visitation with

       [F]ather to commence.” Appellant’s App. Vol. II at 25. Father later requested

       that he be allowed to participate in visitation with Child. On September 12, the

       court approved Father’s request for therapeutic visitation. But the court

       authorized the therapist “to terminate the visitation immediately” if “the

       visitation is deemed to be harmful to the [C]hild.” Id. at 29.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 5 of 14
[12]   The trial court held a fact-finding hearing on the CHINS petition on October 3,

       October 29, and November 5. During the hearing, the State presented as

       evidence the testimony of Doctor Jason Cook, a clinical psychologist who had

       conducted an evaluation of Child to determine if Child would be emotionally or

       mentally harmed by testifying in court. Dr. Cook testified that, when he

       mentioned Father to Child, Child “had emotional reactions like arms flinging”

       and she became “agitated.” Tr. Vol. II at 104. Dr. Cook specifically testified

       that Child would use her arms “as a weapon.” Id. at 108. The State also

       presented as evidence the video recordings of Child’s two forensic interviews.

       Father stipulated to the admission of the first interview, and the court admitted

       the video recording of the second interview without objection from Father.


[13]   On October 19, Kaylee Durnell, Child’s home-based therapist, wrote a letter in

       which she detailed her observations of Child. Specifically, Durnell observed

       that, during play therapy, Child engaged in “rigid play therapy” with themes

       that “allude to high anxiety and inability to manage anxious behaviors.”

       Appellant’s App. Vol. II at 33. Durnell further observed that the “introduction

       of a ‘father role’ during play stimulated anxious behavior” and that Child “will

       deflect, redirect, and flee when [Durnell] explores her relationships with her

       father.” Id. Durnell stated that she is “extremely concerned” that Father had

       visitation with Child, and she asked the court to suspend visitation due to the

       “long lasting, traumatic impact face to face visitation” would cause Child. Id.

       at 34. Based on that letter, the State filed a motion to cease visitation between




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 6 of 14
       Father and Child on October 31, after the second day of the fact-finding hearing

       but prior to the third day.


[14]   At the start of the third and final day of the fact-finding hearing on November 5,

       the court asked counsel for the parties if they had any preliminary matters to

       discuss. DCS stated that it “ha[s] a motion with regard to visitation for later.”

       Tr. Vol. III at 80. The court acknowledged DCS’s motion and confirmed that it

       would discuss the motion, and Father did not raise any issues he had with

       DCS’s motion at that time. The court then proceeded with the fact-finding

       hearing on the CHINS petition. Toward the end of the hearing, the State

       attempted to call Durnell as a rebuttal witness, but Father objected. Due to

       Father’s objection, the court did not allow Durnell to testify “with respect to the

       Fact[-]Finding” hearing, but the court stated that it “will consider the report

       that she has filed on the Motion to Cease Visitation[.]” Id. at 144. At the

       conclusion of the hearing, the trial court took the State’s petition alleging Child

       to be a CHINS under advisement, but the court granted the State’s motion to

       cease visitation from the bench over Father’s objection.


[15]   Thereafter, the trial court entered findings of fact and conclusions thereon in

       which it adjudicated Child to be a CHINS. Specifically, the court found as

       follows:


                    1. [Child] made numerous statements to several persons
                    regarding her father, [Father], touching her in an
                    inappropriate manner on parts of her body, including her
                    vagina and anus. Those statements were made to, or in the
                    presence of, [Sister], [S.R.], Amanda Witham[,] and in two

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 7 of 14
                    (2) forensic interviews. . . . [Father] was the parent who had
                    sole custody of [Child] prior to [Child] being removed from
                    his custody on July 25, 2018.


                    2. From the evidence presented, the Court is convinced that
                    something happened to [Child] and [Child] was subjected to
                    inappropriate touching and [Father] was the person who was
                    legally responsible for [Child]. Additionally, the Court notes
                    that containers of marijuana were found in [Father’s] home at
                    around the time [Child] was removed from the home.


                                                          ***


                    4. Pursuant to Indiana Code [Section] 31-34-1-1, the evidence
                    presented shows that [Child’s] physical or mental health was
                    seriously endangered by being inappropriately touched while
                    in her father’s custody and [F]ather has been unable, has
                    refused[,] or has neglected to supply [Child] with necessary
                    supervision. The Court believes that [Child] is in need of
                    care, treatment, or rehabilitation that [Child] is not receiving
                    and is unlikely to be provided or accepted without the
                    coercive intervention of the Court.


       Appellant’s App. Vol. II at 36-37. On November 16, Father filed a motion to

       correct error. Father asserted that the trial court had violated his due process

       rights when it ceased his visitation with Child because the court granted the

       State’s motion “without a contested hearing” and without Father “having an

       opportunity to cross-examine” Durnell. Id. at 40.


[16]   On December 6, the court held a dispositional hearing and a hearing on

       Father’s motion to correct error. During the hearing, Father stated that he

       “should be afforded the opportunity to at least cross-examine [Durnell] about
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 8 of 14
       her findings[.]” Tr. Vol. III at 156. The court responded and stated that it “did

       not rely upon any of that information” when it granted DCS’s motion to

       terminate Father’s visitation. Id. at 156-57. Rather, the court stated that it had

       granted DCS’s motion to cease visitation “based upon what the Court found in

       the Fact[-]Finding” hearing. Id. at 157. The court then denied Father’s motion

       to correct error and issued its dispositional order in which it ordered Father to

       participate in services. This appeal ensued.


                                       Discussion and Decision
                                  Issue One: Sufficiency of the Evidence

[17]   Father first contends that there was insufficient evidence to sustain the trial

       court’s determination that Child is a CHINS. Our Supreme Court recently

       reiterated our standard of review:


               When reviewing a trial court’s CHINS determination, we do not
               reweigh evidence or judge witness credibility. In re S.D., 2
               N.E.3d 1283, 1286 (Ind. 2014). “Instead, we consider only the
               evidence that supports the trial court’s decision and [the]
               reasonable inferences drawn therefrom.” Id. at 1287 (citation,
               brackets, and internal quotation marks omitted). When a trial
               court supplements a CHINS judgment with findings of fact and
               conclusions of law, we apply a two-tiered standard of review.
               We consider, first, “whether the evidence supports the findings”
               and, second, “whether the findings support the judgment.” Id.
               (citation omitted). We will reverse a CHINS determination only
               if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253
               (Ind. 2012). A decision is clearly erroneous if the record facts do
               not support the findings or “if it applies the wrong legal standard
               to properly found facts.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262
               (Ind. 1997) (citation omitted).

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 9 of 14
       Gr. J. v. Ind. Dep’t. of Child Servs. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind. 2017)

       (alterations in original).


[18]   DCS alleged that Child was a CHINS pursuant to Indiana Code Section 31-34-

       1-1 (2018), which provides that a child is a child in need of services 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; 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. Our Supreme Court has

       interpreted this provision to require “three basic elements: that the parent’s

       actions or inactions have seriously endangered the child, that the child’s needs

       are unmet, and (perhaps most critically) that those needs are unlikely to be met

       without State coercion.” J.B. v. Ind. Dep’t. of Child. Serv. (In re S.D.), 2 N.E.3d

       1283, 1287 (Ind. 2014).


[19]   On appeal, Father asserts that there is insufficient evidence to support the trial

       court’s findings. Specifically, Father asserts that the evidence does not support

       the findings because Child’s statements were unreliable and, “[g]iven the

       unreliability of three-year-old [Child’s] alleged disclosures (which are the only

       evidence whatsoever of alleged sexual abuse),” the evidence “does not

       reasonably lead to the conclusion [Child] was the subject of any sexual abuse.”



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 10 of 14
       Appellant’s Br. at 18, 19. However, we agree with DCS that there is sufficient

       evidence to support the trial court’s findings.


[20]   It is well-established that the testimony of a child victim alone is sufficient to

       support a CHINS allegation. See Rose v. State, 36 N.E.3d 1055, 1061 (Ind. Ct.

       App. 2015) (stating that “a conviction for child molesting may rest solely on the

       uncorroborated testimony of the victim.”). Here, the evidence demonstrates

       that, when S.R. attempted to apply medication to Child, Child “jumped

       backwards” and said, “don’t hurt me. I don’t want it to go in my coochie like it

       does at daddy’s house.” Tr. Vol. III at 92. Additionally, while at the

       pediatrician’s office, Child told Witham that she “didn’t want her daddy to put

       anything down there anymore” while pointing to her vaginal and anal area. Id.

       Further, during Child’s first forensic interview, Child told the interviewer that

       “daddy puts a white ball thing in my coochie.” Ex. 15. Child also told the

       interviewer that Father would “press[] a button” and it “went mmm” like her

       electric toothbrush. Id. And, during Renz’s examination of her, Child told

       Renz that “her daddy had touched her coochie with a white thing” and that her

       “daddy puts his finger in [her] butt.” Tr. Vol. II at 197. Father’s contention on

       appeal, that Child’s statements were unreliable, is merely a request for this

       Court to judge the credibility of the witnesses and to reweigh the evidence,

       which we cannot do. See In re D.J., 68 N.E.2d at 577-78.


[21]   The evidence supports the trial court’s findings that Father’s actions or

       inactions have seriously endangered Child, that Child’s needs are unmet, and

       that those needs are unlikely to be met without State coercion. See In re S.D., 2

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 11 of 14
       N.E.3d at 1287. We therefore hold that sufficient evidence supports the trial

       court’s findings, and its findings support its conclusions with respect to Indiana

       Code Section 31-34-1-1. We affirm the trial court’s adjudication of Child as a

       CHINS. 3


                                              Issue Two: Due Process

[22]   Father next contends that the trial court violated his due process rights when it

       terminated his visitation with Child. It is well settled that “[d]ue process

       requires ‘the opportunity to be heard at a meaningful time and in a meaningful

       manner.’” S.S. v. Ind. Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1257

       (Ind. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). “Due

       process protections at all stages of CHINS proceedings are vital because every

       CHINS proceeding has the potential to interfere with the rights of parents in the

       upbringing of their children.” S.C. v. Ind. Dep’t of Child Servs. (In re L.C.), 23

       N.E.3d 37, 40 (Ind. Ct. App. 2015) (quotation marks omitted).


[23]   Father contends that he was denied his due process rights when the trial court

       “summarily granted” DCS’s motion to cease visitation because the trial court

       “gave [Father] no opportunity to be heard” and because the trial court “did not

       give [Father] advanced notice of the basis [for] granting the motion[.]”




       3
         In its findings of fact, the trial court also “note[d] that containers of marijuana were found in [Father’s]
       home at around the time [Child] was removed from the home.” Appellant’s App. Vol. II at 37. However,
       the trial court only concluded that Child’s physical or mental health was seriously endangered “by being
       inappropriately touched while in her father’s custody.” Id. Accordingly, while the trial court acknowledged
       that officers had found marijuana in Father’s home, the trial court did not base its conclusion that Child is a
       CHINS on that finding of fact.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019                      Page 12 of 14
       Appellant’s Br. at 23. In essence, Father contends that the court violated his

       due process rights when it did not hold a separate hearing on the State’s motion

       to cease visitation because he was not on notice that his visitation would be an

       issue during the CHINS fact-finding hearing. We cannot agree.


[24]   DCS filed its petition alleging Child was a CHINS on July 26, 2018. In that

       petition, DCS alleged that Father had “committed acts on [Child] that appear

       to be sexual acts involving a sexual aid[.]” Appellant’s App. Vol. II at 17.

       Given the specific allegations in that petition, Father was on notice that his

       visitation with Child would be at issue when the merits of that petition came

       before the court. That is to say, any reasonable parent who has been accused of

       sexual misconduct with his child would be aware of the fact that visitation with

       his child would be at issue during the CHINS proceedings.


[25]   Further, prior to the fact-finding hearing on the CHINS petition, Father filed a

       request for visitation, which request the trial court granted. However, in its

       order granting Father’s request, the court specifically authorized the therapist to

       terminate visitation immediately should the therapist deem visitation to be

       harmful to Child. Accordingly, in addition to being on notice that his visitation

       would be at issue based on the allegations in the CHINS petition, Father was

       additionally on notice from the date he received the court’s order granting

       visitation that visitation could be terminated at any time.


[26]   By the time the trial court held a three-day fact-finding hearing beginning on

       October 3, during which Father was represented by counsel, Father had clear


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 13 of 14
       notice that his visitation with Child was at issue. And Father had ample

       opportunity to prepare for and present evidence at that hearing in support of his

       position that visitation should continue. Indeed, Father presented evidence

       during the fact-finding hearing to dispute DCS’s allegations. Further, the trial

       court made its decision to terminate Father’s visitation based only “upon what

       the Court found in the Fact[-]Finding” hearing. Tr. Vol. III at 197.

       Accordingly, even though the trial court did not hold a separate hearing to

       specifically address DCS’s motion to cease visitation, Father “had the

       opportunity to be heard at a meaningful time and in a meaningful manner” on

       the issue of his visitation with Child. In re K.D., 962 N.E.2d at 1257. Because

       Father had the opportunity to be heard, the trial court did not violate Father’s

       due process rights, and we affirm the court’s order ceasing visitation.


                                                    Conclusion

[27]   In sum, DCS presented sufficient evidence to support the trial court’s

       adjudication of Child as a CHINS. And the trial court did not violate Father’s

       due process rights when it terminated Father’s visitation with Child. We affirm

       the trial court.


[28]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-144 | July 22, 2019   Page 14 of 14
