Opinion
24A-JC-742
10-07-2024
In the Matter of C.P. and K.P. (Minor Children), Children in Need of Services, v. Indiana Department of Child Services, Appellee-Petitioner N.B. (Mother), Appellant-Respondent
ATTORNEY FOR APPELLANT Dyllan M. Kemp Dollard Whalin LLP Noblesville, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hamilton Superior Court The Honorable Michael A. Casati, Judge The Honorable Valorie Hahn, Magistrate Trial Court Cause Nos. 29D01-2312-JC-1654 29D01-2312-JC-1655
ATTORNEY FOR APPELLANT
Dyllan M. Kemp
Dollard Whalin LLP
Noblesville, Indiana
ATTORNEY FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Monika Prekopa
Talbot Deputy
Attorney General Indianapolis, Indiana
Vaidik and Foley Judges concur.
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] This case began as a Child in Need of Services (CHINS) proceeding for two children with the same mother, N.B. (Mother), but different fathers. As the case progressed, both fathers sought custody of their respective children. The court combined the CHINS hearing with the fathers' custody requests. At the end of the hearing, the court awarded custody to the fathers, set up supervised visits for Mother, and then dismissed the CHINS cases. On appeal, Mother claims the court should have dismissed the CHINS cases earlier and, had that happened, the court would have lacked authority to enter the custody and parenting time orders. But even if the court had the authority to rule on custody and parenting time, Mother contends the court erred by transferring custody to the fathers. We affirm.
Facts
[¶2] Mother has two children, C.P. (Son), who is now 6 years old, and K.P. (Daughter), who is now 5. Children each have a different biological father. Son's father, L.P., had not established paternity before this CHINS action. Daughter's father, J.P., signed a paternity affidavit after daughter's birth and was a respondent in an inactive paternity action filed in Tipton County in 2021.
[¶3] Children lived with Mother in Hamilton County when the Indiana Department of Child Services (DCS) received reports of Mother's unstable housing and possible domestic violence between Mother and her boyfriend. Children were living with Mother in a camper without running water or heat. After speaking to the fathers, DCS also became concerned that Mother was abusing methamphetamine.
[¶4] Mother denied substance abuse but tested positive for amphetamine and methamphetamine twice in December 2023. Mother agreed to a safety plan but did not comply with it. She also refused to voluntarily engage in services. Two weeks after Mother's second positive drug test, DCS separately petitioned to have Children declared CHINS based on allegations of Mother's housing instability, substance abuse, and domestic violence. The two CHINS petitions were consolidated for hearing.
[¶5] Children were removed from Mother's home and placed with their respective fathers. Mother was given supervised visitation with Children until the factfinding hearing. These events led Son's father to immediately initiate proceedings in Madison County, where he was living, to establish paternity.
[¶6] Mother rectified her housing situation but twice tested positive for amphetamine, but not methamphetamine, in January 2024. She missed two visits with Children before the February CHINS factfinding hearing. DCS recommended Mother participate in a substance abuse evaluation and participate in home-based casework and therapy.
[¶7] Before the CHINS factfinding hearing, Daughter's father filed his "Motion to Assume Temporary Jurisdiction, Establish Paternity, and Issue Order on Custody, Parenting, and Child Support." Son's father then filed his "Request for Custody Under I.C. 31-30-1-3." The two motions and the CHINS factfinding were consolidated for hearing.
[¶8] At the beginning of the CHINS factfinding hearing, the parties stipulated to each father's paternity. After DCS rested its case-in-chief on the CHINS petitions, Mother moved to dismiss under Indiana Trial Rule 41(B). The trial court denied this motion, and Mother and the fathers separately presented their evidence. In closing arguments, DCS contended the court should either: (1) adjudicate Children as CHINS or (2) award custody to the fathers and dismiss the CHINS cases. Mother argued that DCS had not met its burden as to the CHINS petitions and that the fathers' respective custody requests should be denied. She contended that after the CHINS cases closed, the paternity courts- not the CHINS court-were the proper arbiter of Children's custody.
[¶9] The CHINS court issued separate orders for Son and Daughter. As to Son, the court found that Mother had a substance abuse problem, that Son had been thriving in his father's care for two months, and that parents had a strained coparenting relationship. The court therefore granted sole legal and physical custody of Son to his father.
[¶10] The court awarded Mother supervised parenting time with Son "as agreed by the parties or two days per week, for up to four (4) hours." App. Vol. II (Son), p. 2. The court left the issue of child support to the paternity court. Given DCS's request for dismissal if custody were awarded to Son's father, the court made no ruling on the merits of the CHINS petition relating to Son and instead dismissed the CHINS petitions after entering the custody and parenting time order.
[¶11] As to Daughter, the court noted that a paternity decree had been entered in favor of her father based on the parties' stipulation of paternity. Repeating its concerns about Mother's substance abuse, the court awarded Daughter's father primary physical custody of her. But given the admittedly congenial coparenting relationship between Mother and Daughter's father, the court granted joint legal custody of Daughter to them. Under the court's order, Mother was to receive supervised visitation with Daughter "as agreed by the parties or two days per week, for up to four (4) hours." App. Vol. II (Daughter), p. 13. The court left to the paternity court the task of determining child support for Daughter. The court then dismissed the CHINS petition relating to Daughter without ruling on the merits of it.
[¶12] Mother appeals the custody and parenting time judgments and the CHINS dismissals as to both Children.
Discussion and Decision
[¶13] Mother raises two claims, both related to the sufficiency of the evidence supporting the trial court's judgment. First, she claims the trial court lacked any authority to rule on the custody petitions because the court erroneously denied her motion for involuntary dismissal under Indiana Trial Rule 41(B). If the trial court correctly denied her Trial Rule 41(B) motion, Mother alternatively argues that the evidence does not support the trial court's grant of custody and parenting time to the fathers.
[¶14] In response, DCS claims that Mother's appeal of the Trial Rule 41(B) ruling is moot, given the court's eventual dismissal of the CHINS petitions on other grounds. DCS does not respond to the custody issue, noting that the CHINS dismissal means any custody dispute is between Mother and the two fathers.
We conclude that the Trial Rule 41(B) issue is not moot but find Mother has not shown any error in the trial court's rulings.
I. Involuntary Dismissal
[¶15] Trial Rule 41(B) provides:
Involuntary Dismissal: Effect Thereof. 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.
[¶16] We review the denial of a Trial Rule 41(B) involuntary dismissal under the clearly erroneous standard. Thornton-Tomasetti Eng'rs v. Indianapolis-Marion Cnty. Pub. Libr., 851 N.E.2d 1269, 1277 (Ind.Ct.App. 2006). Without reweighing the evidence or judging the credibility of the witnesses, we will reverse only if the evidence is not conflicting and points unerringly to a conclusion different from the one reached by the trial court. Id.
[¶17] Mother claims she was entitled to involuntary dismissal because DCS failed to present any evidence that Children were CHINS. A child is a CHINS if before the child becomes 18 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, 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.Ind. Code § 31-34-1-1.
[¶18] DCS must prove these statutory allegations by a preponderance of the evidence. In re A.M., 121 N.E.3d 556, 562 (Ind.Ct.App. 2019). This amounts to proving three things: (1) the parent's actions or inactions have seriously endangered the child; (2) the child's needs are unmet; and (3) those needs are unlikely to be met without State coercion. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).
A. Mother's Appeal is not Moot
[¶19] DCS claims the Trial Rule 41(B) issue is moot because this Court cannot grant the relief Mother requests. It notes that Mother seeks dismissal of the CHINS petitions, both of which the trial court already dismissed. See generally T.W. v. St. Vincent Hosp. &Health Care Ctr., Inc., 121 N.E.3d 1039, 1042 (Ind. 2019) (ruling that a case is moot when the controversy at issue has been ended, settled, or otherwise disposed of such that the court can give the parties no effective relief).
[¶20] But the factfinding hearing in this case involved more than just the CHINS petitions. The parties agreed that the fathers' custody petitions should be heard jointly with the CHINS petitions. Mother did not limit her Trial Rule 41(B) motion to the CHINS petitions, and DCS does not contend that the custody issue is moot. In fact, DCS does not address the custody issue other than to indicate that it is not contesting that portion of the judgment. As we are capable of granting relief to Mother on the custody issue, this appeal is not moot.
B. Mother Was Not Entitled to Involuntary Dismissal
[¶21] The CHINS petitions alleged that Children were CHINS because of Mother's housing instability and substance abuse, as well as domestic violence within her home. Mother notes that before the factfinding hearing, she had secured housing that DCS deemed appropriate. She argues that DCS's allegations of domestic violence were unproven, and her drug abuse had been rectified. She argues that the trial court therefore erred in failing to dismiss the petition at her request mid-hearing.
[¶22] A CHINS determination may not be based solely on a circumstance that no longer exists. Matter of B.P., 190 N.E.3d 995, 1002 (Ind.Ct.App. 2022). This "avoids punishing parents for past mistakes when they have already corrected them." In re D.J., 68 N.E.3d 574, 581 (Ind. 2017). In keeping with this principle, the CHINS court must consider the parents' circumstances both at the time of filing of the CHINS petition and at the factfinding hearing. S.D., 2 N.E.3d at 1290.
[¶23] Contrary to Mother's claim, by the time Mother moved for dismissal under Trial Rule 41(B), DCS had presented sufficient evidence to overcome her motion. The evidence showed that Mother twice tested positive for amphetamine and methamphetamine in December, before Children's removal, and that she tested positive for amphetamine twice one month later. Although the January test results could have resulted from Mother's use of prescription Adderall, no such evidence explained Mother's positive drug tests in December. In addition, Mother missed two visitations before the CHINS factfinding hearing, which led the DCS family case manager (FCM) to believe that Mother might still be using illegal drugs.
[¶24] On appeal, Mother asserts this drug evidence showed that her substance abuse was isolated and did not endanger Children. This Court has ruled that the "finding of an isolated use of methamphetamine, without more, does not support the conclusion of law that [a child] was a CHINS." In re S.K., 57 N.E.3d 878, 883 (Ind.Ct.App. 2016). But DCS presented evidence of both fathers' concerns about Mother's history of methamphetamine use.
[¶25] Mother testified that stress led her to use methamphetamine when her Adderall prescription ran out. At that point, Mother explained, obtaining methamphetamine was easier for her than simply renewing her prescription for Adderall. She reported that she stopped her use of Adderall completely after she tested positive twice for amphetamine.
[¶26] But before moving for involuntary dismissal, Mother consistently had denied using illegal drugs, despite the two unchallenged positive drug tests. But Son's father testified that Mother had been arrested for methamphetamine possession when Son was five months old and that her drug use was "ongoing." Tr. Vol. II, p. 78.
[¶27] Mother's drug use endangered Children because she was the sole caregiver of Son and the primary caretaker of Daughter before Children's removal. For example, Mother routinely drove Children the long distance between Brown County and Hamilton County so that she could maintain their placements in a preschool and kindergarten. The court did not credit Mother's testimony that she only used the methamphetamine before she went to work and outside the presence of Children.
[¶28] Although Mother had not tested positive for drugs for two consecutive months before the CHINS factfinding hearing, the FCM expressed concern about returning Children to Mother's home absent substance abuse monitoring. Mother's substance abuse history, her denial of any substance abuse until then, her failure to follow the safety plan that preceded the CHINS petition, her missed visitations, and her refusal to voluntarily participate in recommended services all suggested that court coercion would be necessary to ensure Mother remained sober. Accordingly, the trial court's denial of Mother's motion for involuntary dismissal was not clearly erroneous.
II. Custody and Parenting Time Orders
[¶29] Given the lack of Trial Rule 41(B) error, Mother alternatively claims that the trial court abused its discretion in granting custody to the fathers and restricting her parenting time. The fathers did not participate in this appeal, so Mother need only establish prima facie error to prevail. See In re Paternity of S.C., 966 N.E.2d 143, 148 (Ind.Ct.App. 2012). Prima facie error is "an error at first sight, on first appearance, or on the face of it." Id. Although we will not develop legal arguments on the appellee's behalf, we remain "obligated to correctly apply the law to the facts in the record to determine whether reversal is warranted." Id.; Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind.Ct.App. 2014).
[¶30] Mother acknowledges a CHINS court typically has concurrent jurisdiction with a paternity court over custody matters under Indiana Code § 31-30-1-13. Subsection (a)(1) of that statute provides, in pertinent part:
[A] court having jurisdiction under IC 31-14 over establishment or modification of paternity, child custody, parenting time, or child support in a paternity proceeding has concurrent original
jurisdiction with another juvenile court for the purpose of establishing or modifying paternity, custody, parenting time, or child support of a child who is under the jurisdiction of the other juvenile court because . . . the child is the subject of a child in need of services proceeding.Ind. Code § 31-30-1-13(a)(1). Meanwhile, subsection (b) generally provides:
[A] court having jurisdiction over a child who is the subject of a child in need of services proceeding or juvenile delinquency proceeding has concurrent jurisdiction with a court having jurisdiction under IC 31-14 for the purpose of establishing or modifying paternity, custody, parenting time, or child support of the child.Ind. Code § 31-30-1-13(b).
[¶31] We review custody decisions for an abuse of discretion, "with a 'preference for granting latitude and deference to our trial judges in family law matters.'" Reel v. Reel, 231 N.E.3d 915, 923 (Ind.Ct.App. 2024) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). A trial court abuses its discretion if its decision is "clearly against the logic and effect of the facts and circumstances before it or where the trial court errs on a matter of law." Id. (quoting Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013)).
[¶32] Where the trial court enters sua sponte findings on child custody, as it did here, we reverse only upon a showing that the findings or judgment are clearly erroneous. Id.; Ind. Trial Rule 52. We do not reweigh the evidence and will affirm the trial court's custody decision if any evidence or legitimate inferences support it. Reel, 231 N.E.3d at 923. We address Mother's custody and parenting time challenges in turn.
A. Custody
[¶33] Mother's custody claims vary for each child. As to Son, Mother claims the trial court abused its discretion in granting sole legal custody and primary physical custody to his father. As to Daughter, Mother challenges the trial court's determination that her father should have primary physical custody.
[¶34] Custody decisions after a paternity determination are governed by Indiana Code § 31-14-13-2. That statute provides:
The court shall determine custody in accordance with the best interests of the child. In determining the child's best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent....Ind. Code § 31-14-13-2. The child's best interests are the guiding principle in both custody and parenting time determinations. Sabo v. Sabo, 858 N.E.2d 1064, 1068 (Ind.Ct.App. 2007); Ind. Code § 31-17-4-2 ("The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.").
i. Son's Custody
[¶35] Mother claims the award of Son's sole legal and primary physical custody to his father was improper because his father was not involved with Son for the first two or three years of the child's life and had only limited contact thereafter until the CHINS proceeding.
[¶36] The trial court found that Son was thriving in his father's care. While living with Mother, however, Son had struggled in kindergarten. The court further found that transfer of Son's custody to his father was in Son's best interests based on the following additional findings:
6. The Court has serious concerns primarily about Mother's substance abuse.
7. Mother testified that she used methamphetamine as a "substitute" for her prescribed Adderall (a prescription amphetamine drug), because she was too overwhelmed caring for her children and because she could not, or would not, obtain a refill prescription from her doctor.
8. The Court does not find Mother's testimony in this regard to be credible.
9. Both parties provided testimony that their relationship is strained and they have a poor ability to communicate effectively.
10. The Court therefore does not find joint legal custody to be in the child's best interests pursuant to Ind. Code § 31-17-2-15.App. Vol. II (Son), p. 8.
[¶37] The evidence supports these findings and the court's ultimate award of Son's sole legal and primary physical custody to his father. Mother and Son's father, by all accounts, had a strained co-parenting relationship that resulted in Son's father having limited parenting time with his son. For instance, Son's father testified that Mother had changed her phone number and blocked him on social media communication platforms to prevent his contact with Son. Mother also accuses Son's father of obstructive behavior.
[¶38] In light of this undisputed conflict between the parties, Mother does not suggest on appeal that the parties could share legal custody. See generally Ind. Code § 3117-2-15(2) (requiring a trial court, when determining legal custody, to consider "whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare"). Instead, Mother appears to claim only that she should have been allowed to maintain sole legal custody because she was Son's only caregiver for the first five years of his life. See generally Ind. Code § 31-14-13-1 (providing that "[a] biological mother of a child born out of wedlock has sole legal custody of the child" absent certain statutory exceptions not applicable here).
[¶39] The record supports the trial court's determination that Son's best interests dictated that his father serve as sole legal and primary physical custodian. The evidence showed Mother's questionable decision-making during the months immediately before the CHINS factfinding hearing, given her repeated use of methamphetamine and her failure to provide safe and stable housing for Children before the CHINS filing. See generally Ind. Code § 31-17-2-15(1) (requiring the trial court determining custody to consider "the fitness and suitability of each of the" parents). The trial court did not find credible Mother's testimony minimizing her illegal drug use. Children also were exposed to a domestic incident involving Mother's intoxicated boyfriend to which police responded.
[¶40] While Mother worked to achieve stability, Son's father stepped up to the plate and provided a stable home where Son thrived. Although Mother focuses on Son's father's two positive tests for marijuana, the record reveals no evidence that Son's father used other drugs or that Son's father, like Mother, had a history of substance abuse. Ultimately, Mother's arguments amount to a request to reweigh the evidence, which we will not do. "It is not enough on appeal that the evidence might support some other conclusion; rather, the evidence must positively require the result sought by the appellant." In re the Paternity of V.D., 226 N.E.3d 816, 822 (Ind.Ct.App. 2024). We thus will not substitute our judgment if any evidence or legitimate inferences support the trial court's decision. Id.
[¶41] Given the evidence presented, we cannot say that Mother has established prima facie error in the trial court's decision to grant Son's father sole legal and primary physical custody of Son.
ii. Daughter's Custody
[¶42] For many of the same reasons, we reject Mother's claim that the trial court abused its discretion in awarding primary physical custody of Daughter to her father. Although Mother and Daughter's father co-parented cooperatively, Mother notes that she was Daughter's primary caretaker until the CHINS proceeding. Mother also argues that her housing was more spacious than that of Daughter's father, given that he lived with his girlfriend and their baby in a two-bedroom home. But DCS did not deem the home of Daughter's father as inadequate, and it far exceeded the housing that Mother had provided to Children before the CHINS filing when they were sometimes living in a camper without heat or running water. In any case, Daughter's father intended to obtain more spacious housing if needed. And he did not engage in drug use like Mother.
[¶43] Mother's arguments here also amount to an invitation to reweigh the evidence that we decline. As the record contains evidence from which the trial court could reasonably conclude that Daughter's father should have primary physical custody of Daughter, we find Mother has failed to show prima facie error in the court's decision.
B. Parenting Time
[¶44] Mother also challenges the parenting time restrictions relating to both Children. Parenting time decisions are based on the best interests of the child. Ind. Code § 31-17-4-2. But a court "shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development." Ind. Code § 31-17-4-2. "Even though the statute uses the word 'might,' this Court has previously interpreted the language to mean that a court may not restrict parenting time unless that parenting time 'would' endanger the child's physical health or emotional development." Hatmaker v. Hatmaker, 998 N.E.2d 758, 761 (Ind.Ct.App. 2013). An order of supervised visitation constitutes a restriction of parenting time. Id. at 762.
[¶45] Mother claims the trial court erroneously ordered her parenting time be supervised without evidence that unsupervised parenting time would endanger or significantly impair Children's emotional development. She focuses on her self-serving testimony that she used methamphetamine twice to replace her prescription Adderall when she was outside both her home and the presence of Children. The trial court did not credit this testimony and was in the best position to determine Mother's veracity. The court's concerns about Mother's sobriety-concerns justified by the evidence-appear to have sparked its requirement that Mother's parenting time be supervised. We find Mother has failed to meet her burden of showing prima facie error.
[¶46] We affirm the trial court's judgment.
Vaidik, J., and Foley, J., concur.