Roark v. Roark

• Court: Indiana Appellate Court
• Writing for the Court: STATON; MILLER
• Citation: Roark v. Roark, 551 N.E.2d 865 (Ind. App. 1990)
• Decision Date: 19 March 1990
• Docket Number: No. 64A03-8808-CV-265,64A03-8808-CV-265
• Parties: Charles ROARK, Appellant, v. Lisa ROARK, Christina Roark, Charles Roark, Samantha Roark, Porter County Department of Public Welfare, April Barden, Appellees.

Page 865

551 N.E.2d 865

Charles ROARK, Appellant, v. Lisa ROARK, Christina Roark, Charles Roark, Samantha Roark Porter County Department of Public Welfare, April Barden, Appellees.

No. 64A03-8808-CV-265.

Court of Appeals of Indiana Third District.

March 19, 1990.

Marcia L. Gienapp, Legal Services of Northwest Indiana, Inc., Valparaiso, for appellant.

John P. Shanahan, Petry, Fitzgerald & Shanahan, Hebron, for appellees.

STATON, Judge.

Charles Roark appeals from dispositional orders entered in the Porter County Juvenile Court which placed his four children in foster care following a determination that the children were Children in Need of Services (CHINS). ¹ Roark challenges the CHINS findings and dispositional orders on several grounds; appellees April Barden, the Porter County Department of Public Welfare, and the Roark children by guardian ad litem raise one issue which we also address. Consolidated and restated, the issues are:

1. Whether this appeal should be dismissed as moot?

2. Whether the trial court erred in admitting the hearsay statements of the Roark children at the fact-finding hearing?

3. Whether the evidence is sufficient to support the judgment of the trial court?

4. Whether the trial court erred in delaying reunion of the family until psychological testing could be completed?

We affirm.

Charles Roark and April Barden are the parents of four children: L.R. (b. December 15, 1977); Ca.R. (b. October 20, 1978); Cs.R. (b. March 3, 1980); and S.R. (b. August 28, 1983). Barden and Roark divorced in September of 1985. Roark received sole custody of the children.

On January 19, 1988, the Porter County Department of Public Welfare (D.P.W.) received a report indicating that the daughter of Roark's girlfriend had received second and third degree burns on her face, torso, and back.

An investigation revealed that the injuries were sustained while the youngster, A.J., was in Roark's care. On petition by the D.P.W., the Porter Juvenile Court issued emergency detention orders for the Roark children and the injured child.

Pursuant to statute, a detention hearing was held on January 22, 1988. See West's AIC 31-6-4-6 (Supp.1989). The court found probable cause to believe that the Roark children were Children in Need of Services and ordered their placement in foster care. The D.P.W. thereafter filed CHINS petitions, upon which a fact-finding hearing was held on March 4, 1988.

At the close of evidence, the trial court declared the Roark children to be Children in Need of Services. Dispositional orders were entered on May 6, 1988, which continued the childrens' foster care placement pending psychological assessments of the family members.

In accordance with IC 31-6-4-19(b), a review hearing was held on July 8, 1988. The Roark children were returned to their father's care at that time with the condition of continued supervision by the D.P.W. On January 6, 1989, following the initiation of this appeal, the Porter County Juvenile Court held a second review hearing. At that time, D.P.W. supervision was discontinued and the cause was dismissed.

I. Moot

The D.P.W. ² contends that this appeal should be dismissed as moot by virtue of the dismissal of this action by the trial court and because the Roark children have long since been reunited with their father. The D.P.W. argues that, as a result of the dismissal and reunification of the family, there remains no justiciable controversy nor means available to this court to change the status quo. Roark counter-argues that a CHINS finding presents collateral consequences serious enough to justify consideration of this appeal on its merits. We agree with Roark.

An appeal or an issue becomes moot when:

1. it is no longer "live" or when the parties lack a legally cognizable interest in the outcome;

2. the principal questions in issue have ceased to be matters of real controversy between the parties; or

3. the court on appeal is unable to render effective relief upon an issue.

Haggerty v. Bloomington Board of Public Safety (1985), Ind.App., 474 N.E.2d 114, 115-116. Because this court decides only real controversies or questions, we dismiss appeals which raise moot or abstract propositions. Perkins v. Kocher (1988), Ind.App., 531 N.E.2d 231, 233. However, the appeal before us is not moot. An appeal may be heard which might otherwise be dismissed as moot where leaving the judgment undisturbed might lead to negative collateral consequences. In Re Marriage of Stariha (1987), Ind.App., 509 N.E.2d 1117, 1123. The reasoning behind this exception is that "it is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequence of the disability itself for an indefinite period of time." Id.; citing Sibron v. New York (1968), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.

We conclude that this appeal is not moot because of the potentially devastating consequences of a CHINS determination. Under West's AIC 31-6-8-1(b)(3) (Supp.1989), the record of a CHINS proceeding is available to any criminal court judge or authorized staff member for use in a pre-sentence investigation. Under IC 31-6-8-1(b)(4) and (5), the record of a CHINS proceeding is available to the prosecutor, the Department of Public Welfare, and the Department of Corrections. Use of this record by the prosecutor is not a remote possibility as at the time this appeal was initiated, Roark was faced with a child neglect charge stemming from the incident where A.J. was burned. The record may also be used to impeach Roark as a witness in any future criminal case or discredit his reputation if placed in issue. IC 31-6-8-1(g). Too, the records would be available for Barden's use in any future action regarding custody or support of the Roark children. IC 31-6-8-1(b)(6). Most importantly, however, we note that CHINS determinations often accumulate and in extreme cases result in the termination of parent child relationship. See Wardship of Nahrwold v. Department of Public Welfare of Allen County (1981), Ind.App., 427 N.E.2d 474, 482, trans. denied, (Staton, J. dissenting). For these reasons, we review the merits of this appeal.

II. Hearsay

Over Roark's objections to hearsay, a deputy from the Porter County Sheriff's Department and a D.P.W. caseworker were allowed to testify at the fact-finding hearing as to what the Roark children told them about the incident in which the child, A.J., was burned. Roark was not the child's father, but was babysitting her while his girlfriend worked. Briefly, the hearsay evidence admitted shows that four-year old S.R. told the caseworker that her father had "drownded" A.J. by repeatedly pushing her face and body into a bathtub full of hot water. S.R. said her father was angry at A.J. because she would not sit down in the bathtub or stop crying. She said her father had also tried to "drownded" her in the past. Nine-year-old Ca.R. told the sheriff's investigator that her father had repeatedly pushed A.J. into the water and had also purposely pushed A.J.'s head into a wall. She had earlier told the caseworker that her father had instructed her to say that A.J. had been injured when S.R. caught drips of hot water in a teacup and poured them on A.J. Ca.R. also told the investigator that Roark had given S.R. a nosebleed that same day by shoving her into a wall.

West's AIC 31-6-3-2(a)(1) gives parents, guardians or custodians involved in CHINS proceedings the right to cross-examine witnesses. Roark argues that the admission of the above-referenced hearsay was in violation of this right, citing several delinquency cases to support his argument. See e.g. Simmons v. State (1978), 175 Ind.App. 333, 371 N.E.2d 1316 (hearsay rule applies in juvenile proceedings). As Roark points out, our courts have not had occasion to directly address the subject of the proper use of hearsay in CHINS proceedings. However, several recent legislative enactments have obviated the need to fashion our conclusion from essentially unrelated authority.

One of the stated purposes of the Indiana Juvenile Code is "to provide a judicial procedure that insures fair hearings and recognizes and enforces the constitutional and other legal rights of children and their parents." West's AIC 31-6-1-1(2). However, it has been stated that "in all cases affecting the lives of children, the primary concern of the courts is the welfare of the child". County Department of Public Welfare of St. Joseph County v. Morningstar (1958), 128 Ind.App. 688, 151 N.E.2d 150, 156, trans. denied. In order to reconcile these sometimes opposing concerns, our legislature has created several methods by which a parent's right to cross-examine witnesses can be protected while also protecting children from the trauma of testifying in court. West's AIC 31-6-15-2 (Supp.1989) provides:

A statement or videotape that:

(1) is made by a child who was under ten (10) years of age at the time of the statement or videotape;

(2) concerns an act that is a material element in determining whether a child is a child in need of services; and

(3) is not otherwise admissible in evidence under statute or court rule;

is admissible in evidence in an action described in section 1 of this chapter if the requirements of section 3 of this chapter are met.

This statute applies to "actions initiated to determine if a child is a child in need of services under IC 31-6-4-3(a)(1) through IC 31-6-4-3(a)(5)." IC 31-6-15-1; IC 31-6-15-2. In order to render a child's videotape or statement admissible under this statute, a hearing must be held, with the child in attendance, during which the trial court must determine that: the statement contains sufficient indicia of reliability, and; either that the child will testify at the CHINS proceeding or that the child is unavailable as a witness due to trauma, medical difficulties, or legal incompetence. IC 31-6-15-3. ³ Using similar criteria prerequisite to...