Germaine v. State, No. 52A02-9902-CR-129.

• Docket Nº: No. 52A02-9902-CR-129.
• Citation: 718 N.E.2d 1125
• Case Date: October 25, 1999
• Court: Court of Appeals of Indiana

718 N.E.2d 1125

Sherrie GERMAINE, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 52A02-9902-CR-129.

Court of Appeals of Indiana.

October 25, 1999.

Transfer Denied December 27, 1999.

718 N.E.2d 1127

Jeffrey G. Price, Peru, Indiana, Attorney for Appellant

Jeffrey A. Modisett, Attorney General of Indiana, Rosemary L. Borek, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

718 N.E.2d 1126

OPINION

BAILEY, Judge

Case Summary

Appellant-Defendant Sherrie Germaine ("Mother") appeals her convictions after a jury trial of four counts of Neglect of a Dependent, class D felonies.¹ We affirm.

Issues

Mother raises two issues which we restate as:

I. Whether the trial court erred by overruling her objection to the introduction into evidence of a videotape and photographs taken of the inside of Mother's house under the authority of an ex parte order entered in collateral Child in Need of Services ("CHINS") proceedings.

II. Whether the evidence is sufficient to support Mother's convictions.

Facts

The evidence in the light most favorable to the verdict reveals a caseworker ("Caseworker") from the Miami County Department of Family and Children ("DFC") went to Mother's home where she lived with her husband ("Father") and their four children. (R. 235, 268, 307). At the home, Caseworker spoke with Father who permitted her to have a look inside the home and to take a photograph. (R. 308). The photograph showed that the door was almost completely blocked by two mattresses and a pile of garbage. (R. 310). Caseworker took one step inside the home, but was repelled by foul odors, became sick, and vomited. (R. 311). Caseworker requested the DFC attorney to obtain a court order permitting DFC representatives access to the home to inspect it. (R. 311-12).

The Judge of the Juvenile Court issued an order which read in pertinent part as follows:

718 N.E.2d 1128

STATE OF INDIANA IN THE MIAMI JUVENILE COURT

SS:

COUNTY OF MIAMI CALENDAR TERM, 1997 IN THE MATTER OF

[the four children, each with a corresponding cause number]

Children alleged to be children in need of services

EXPARTE ORDER FOR DFC TO TAKE PHOTOGRAPHS OF THE CONDITION OF THE FAMILY RESIDENCE AND INSPECTION OF THE PREMISES

Comes now the Miami County Office of the Division of Family and Children, hereinafter referred to as the "DFC" by its attorney, Robert A. Spahr, and its Family Casemanager, [Caseworker], for its Exparte Order for DFC to take Photographs of the Condition of the Family Residence and Inspection of the Premises by the DFC and a Miami County Law Enforcement Officer, and respectfully shows the Court as follows:

1. The DFC believes that living conditions in the family residence located at [Mother's address], are to the point that they do not meet the minimum sufficient level of care which the custodial parent has a duty to provide for the physical and mental health of the children then occupying the residence.

2. It is in the best interests of the minor children, [the names of the four children], that this Court authorize by means of this Exparte Order to immediately, and without notice, at 2:30 p.m. on August 27, 1997, proceed to [Mother's] household located at [Mother's address], for the purpose of photographing the interior as well as the exterior thereof, in an effort to substantiate of record the present living conditions at that location. Additionally, a Miami County Law Enforcement Officer shall accompany the DFC Family Casemanager, [Caseworker], to [Mother's] residence to determine whether the living conditions therein represent a violation of the living standards with regard to a residential structure and to identify any hazards posed by the living conditions therein.

3. The Miami County Sheriff shall forthwith serve a copy of this Order to the parents of [Mother's] children, at their residence located at [Mother's address].

ALL OF WHICH IS FINALLY ORDERED, on this August 27, 1997.

(bold original).

A police officer and two DFC representatives ("the investigators") went to Mother's house to execute the order/warrant. (R. 204-10). Father allowed the investigators into the home. (R. 210). The investigators wore rubber gloves and masks and placed "Vicks Vapo Rub" on the masks and in their noses to cover the foul odors. (R. 210, 219, 230). The investigators photographed the area with a camera and a videotape recorder. (R. 211). The floor of the house was covered with garbage, decayed food, and other debris. (R. 210, 229-30, 250). It was difficult to walk around the house because of all the debris; the investigators sank into the garbage with every step. (R. 221, 230). There was a path of compacted garbage about two feet high which was used to access the children's bedrooms. (R. 232, 246). There were heaps and heaps of garbage, some of it as high as an investigator's shoulder. (R. 230-31). Not all of the rooms were accessible. (R. 271). The house was infested with flies, roaches, and other insects. (R. 210, 233, 278).

There was an electric fan on top of the garbage which an investigator recognized as a fire hazard. (R. 230). The gas water heater, and gas furnace employed pilot lights. (R. 347). Although the house had three doors to the outside, only one was

718 N.E.2d 1129

accessible because the others were blocked by trash and debris. (R. 219). The blocked doorways also represented a fire hazard. (R. 230). There were no smoke alarms. (R. 347)

Based on the investigation, the DFC requested an emergency order in the CHINS proceedings to remove the children from the home. (R. 233-35, 353). Caseworker testified on cross-examination that the purpose for going to Mother's home in the first place was to safeguard the children. (R. 353). The children were adjudicated as CHINS based in part upon the parents' admissions. (R. 236). Pursuant to a court order, and in conjunction with the CHINS proceedings, caseworkers from the DFC and others cleaned out the home and introduced a homemaker into the home to provide assistance. (R. 338-39, 367). Caseworker and the Court Appointed Special Advocate ("CASA") both testified that the goal of the DFC is to continue to work toward reunification of the family. (R. 354.374-75).

Father pled guilty to child neglect and testified against Mother at trial. (R. 282, 294-96). Father admitted that the house was a fire hazard. (R. 275). Father testified that if there were a fire, the children would have had to exit through the upstairs windows because the clutter blocked the doors to the outside. (R. 280). Father testified that the house was full of flies and that there were hundreds of cockroaches. (R. 279). Father testified that the children had occasionally been sent home from school because of lice. (R. 287).

A physician who was a member of the "Child Protective Team" testified that the home posed a health risk to its inhabitants.² (R. 327). The physician testified that rotting food, flies, cockroaches, and rodents could breed diseases. (R. 328). The physician stated that cockroach feces had been identified as a major contributor to respiratory illnesses, especially asthma. (R. 329).

The videotape and the photographs taken by the investigators pursuant to the Juvenile Court's order/warrant were shown to the jury. (R. 217-18, 309-24).

Mother was found guilty of four counts of Child Neglect, one count for each of her children. (R. 12-15, 96-97). Mother received a suspended sentence and was placed on probation. (R. 6, 430-31). This appeal ensued.

Discussion and Decision

I. Admissibility of Videotape and Photographs of the Inside of Mother's House

A. Mother's Contentions

Mother asserts the videotape and photographs should have been suppressed as products of a warrantless search. Mother contends that, "to the extent the search... could be construed as an administrative search, the warrant requirement still obtains." (Appellant's brief at 9). Mother argues the ex parte order entered by the juvenile court in the CHINS proceedings was not valid as a search warrant.³

B. Searches Pursuant to an Administrative Warrant—a Lesser Standard of Probable Cause than required in Traditional Criminal Investigations

A search of a private house is presumptively unreasonable if conducted without a warrant. Marshall v. Barlow's, Inc., 436 U.S. 307, 308, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978)...