K.W. v. Ind. Dep't of Child Servs., Court of Appeals Case No. 21A-JC-598

• Docket Nº: Court of Appeals Case No. 21A-JC-598
• Citation: 178 N.E.3d 1199
• Case Date: October 21, 2021
• Court: Court of Appeals of Indiana

178 N.E.3d 1199

In the MATTER OF K.W. and R.W., (Children in Need of Services)
and
D.W. (Father), Appellant-Respondent,
v.
Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals Case No. 21A-JC-598

Court of Appeals of Indiana.

FILED October 21, 2021

Attorney for Appellant: Don R. Hostetler, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, David E. Corey, Supervising Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

1] D.W. ("Father") appeals the trial court's determination that his children, K.W. and R.W. (collectively, the "Children"), are children in need of services ("CHINS"). Father contends that: (1) the trial court erred by denying Father's two motions to dismiss for failure to complete the fact-finding and dispositional hearings within the statutory time deadlines; and (2) the evidence is insufficient to sustain the trial court's conclusion that the Children are CHINS. Finding that the fact-finding hearing and dispositional hearing were continued for good cause pursuant to Indiana Trial Rule 53.5 and that the evidence supports the trial court's conclusion that the Children are CHINS, we affirm.

Issues

[2] Father raises several issues, which we consolidate and restate as:

I. Whether the trial court abused its discretion by denying Father's motions to dismiss for failure to complete the factfinding and dispositional hearings within the statutory time frames.

II. Whether sufficient evidence supports the CHINS adjudications.

[178 N.E.3d 1203

Facts

3] Father and K.A. ("Mother") had two children—R.W., born in November 2005, and K.W., born in September 2011. Father and Mother divorced in 2011 and were parties to a tumultuous domestic relations proceeding in Monroe County Circuit Court. Both Father and Mother have struggled with substance abuse. Multiple Department of Child Services ("DCS") assessments have been performed over the years. Father has a history of failing to cooperate with DCS and refusing to participate in drug screens. A CHINS proceeding was initiated in 2016 and closed in 2017.

[4] In November 2019, the Monroe Circuit Court granted Father legal and physical custody of the Children and suspended Mother's parenting time in the domestic relations case. In December 2019, the trial court ordered Father to cooperate with DCS, allow DCS into his home, and allow DCS to speak with the Children. Father was ordered to submit to drug screens. In January 2020, the trial court found Father in contempt for his failure to cooperate with DCS. Father, however, continued to be uncooperative with DCS and refused to submit to drug screens.

[5] Kaitlyn Williams, her boyfriend, and her children lived with Father for a short time and slept downstairs in Father's house. Father's children, R.W. and K.W., each had their own bedrooms, and Father would sleep in K.W.’s bed. One night, Williams heard a repeating knocking noise that sounded like "the bed hitting the wall," and Williams went upstairs to investigate. Tr. Vol. II p. 33. Williams saw K.W. with blood dripping from her nightgown. K.W. had tears in her eyes and told Williams, "I need to tell you something," and Father pulled K.W. away. Id. at 34. That night, Williams, fearful of the situation in the home, took her children and moved out of Father's house.

[6] Williams also observed that Father "barely got [the Children] to school" and that Father was using methamphetamine. Id. at 37. Williams described Father as "just a weird individual all around." Id. at 38.

[7] On February 1, 2020, family case manager ("FCM") Breanna Kirk made contact with K.W. at Mother's residence. While FCM Kirk was talking with K.W., Father arrived. K.W.’s "demeanor changed," and she "basically shut down" and would not talk with FCM Kirk. Id. at 19, 20. Both Mother and Father refused to participate in a drug screen offered by FCM Kirk. Father informed a police officer on the scene that he had recently smoked marijuana. FCM Kirk removed the Children from the parents’ care due to the allegations. K.W. "didn't want to have anything to do with [Father] at all" as she was leaving. Id. at 21.

[8] FCM Kirk immediately took K.W. to Riley Hospital for an examination. Forensic Nurse Nicole Johnson examined K.W. and found "some redness near the inferior portion of her vagina" and "some edema to her labia minora and majora." Id. at 70. It was recommended that K.W. take a "sitz bath" because "her vagina was swollen." Id. at 29. Nurse Johnson admitted that the cause of the trauma was "outside of [the] scope" of her examination. Id.

[9] DCS filed a petition alleging that the Children are CHINS on February 4, 2020. The petition alleged that K.W. was a CHINS based upon Indiana Code Section 31-34-1-1 (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 to supply the child with necessary food, clothing, shelter, medical care, education, or supervision) and

[178 N.E.3d 1204

Indiana Code Section 31-34-1-3 (the child is a victim of a sex offense). The petition alleged that R.W. was a CHINS based upon Indiana Code Section 31-34-1-1 (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 to supply the child with necessary food, clothing, shelter, medical care, education, or supervision) and Indiana Code Section 31-34-1-3(c) (a child living in the same household with another child who is a victim of a sex offense). Specifically, the petition alleged that Father failed to provide the Children with "a safe and appropriate living environment free from substance abuse and sexual abuse." Appellant's App. Vol. II p. 38. On March 9, 2020, at a pre-trial conference, the trial court noted that the parties did not waive the sixty-day deadline for conducting a fact-finding hearing and set the fact-finding hearing for March 20, 2020.

10] Due to the COVID-19 emergency, the Indiana Supreme Court entered a series of orders tolling time limits beginning in March 2020. See In the Matter of Administrative Rule 17 Emergency Relief for Indiana Trial Courts Relating to the 2019 Novel Coronavirus (COVID-19) , 141 N.E.3d 388 (Ind. 2020) ; In the Matter of Administrative Rule 17 Emergency Relief for Indiana Trial Courts Relating to the 2019 Novel Coronavirus (COVID-19) , 141 N.E.3d 389 (Ind. 2020). On March 13, 2020, our Supreme Court issued an order granting Marion County's petition for emergency relief. In the Matter of the Petition of the Courts of Marion County for Administrative Rule 17 Emergency Relief , 20S-CB-00113 (Mar. 13, 2020). That order provided: "The Court authorizes the tolling, beginning March 16, 2020 and until April 6, 2020, of all laws, rules, and procedures setting time limits for speedy trials in criminal and juvenile proceedings ... and in all other civil and criminal matters before the courts of Marion County." Ultimately, the tolling of time limits was extended through August 14, 2020. In the Matter of Admin. Rule 17 Emergency Relief for Indiana Trial Courts Relating to the 2019 Novel Coronavirus (COVID-19) , 145 N.E.3d 787 (Ind. 2020). Accordingly, the time for conducting the fact-finding hearing was tolled from March 16, 2020, through August 14, 2020.

[11] The matter was set for a fact-finding hearing on August 14, 2020, but DCS filed a motion to convert the August 14^th hearing to a pre-trial conference, which the trial court granted. Father did not appear for the pre-trial conference, and Father's counsel informed the trial court that Father did not wish counsel to represent him any longer. The trial court's order regarding the August 14, 2020 pre-trial conference provides: "DCS reports that the 60 day trial rule [sic] has not been waived. DCS requests the Court find good cause to waive the 60-day trial rule. Court makes specific findings on the record." Appellant's App. Vol. II p. 209. The trial court then set the matter for an additional pre-trial conference in September 2020.

[12] Father appeared at the September 2020 pre-trial conference, and the trial court appointed a public defender to represent Father; the trial court subsequently entered an order that provided: "Counsel requests this matter be set for in-person fact-finding. Court notes the 60 days was waived as the court found good cause. Court sets this matter for virtual fact-finding noting scarcity of in-person hearings." Id. at 220. The trial court set the fact-finding hearing for October 30, 2020.

[13] On October 23, 2020, Father filed a motion to dismiss the CHINS proceedings claiming Father did not waive the statutory requirement to hold a fact-finding hearing within sixty days. Father contended

[178 N.E.3d 1205

that a fact-finding hearing should have been held on or before September 2, 2020. The trial court denied the motion to dismiss.

14] The trial court held a fact-finding hearing on October 30, 2020. Christina Adkins, R.W.’s therapist, testified that R.W. disclosed physical abuse by Father, homelessness, and "educational abuse where she was not able to go to school." Tr. Vol. II p. 49. R.W. disclosed that Father "was either always high ... or not taking his medicines properly and in a diabetic coma ... and could not get her to school." Id. at 49-50. Therapist Adkins supervised...