T.H. v. Ind. Dep't of Child Servs. (In re G.H.)

• Decision Date: 06 April 2023
• Docket Number: 22A-JC-2643
• Parties: In the Matter of: G.H. (Minor Child) v. Indiana Department of Child Services, Appellee-Petitioner and R.H. (Father), and T.H. (Custodian) Appellants-Respondents,
• Court: Indiana Appellate Court

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In the Matter of: G.H. (Minor Child) and R.H. (Father), and T.H. (Custodian) Appellants-Respondents, v. Indiana Department of Child Services, Appellee-Petitioner

No. 22A-JC-2643

Court of Appeals of Indiana

April 6, 2023

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Wabash Circuit Court The Honorable David Cox, Senior Judge The Honorable Robert R. McCallen, III, Judge Trial Court Cause No. 85C01-2206-JC-27

ATTORNEY FOR APPELLANT

Katrina M. Dyson

Lynn Law Office, P.C.

Wabash, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Monika P. Talbot

Deputy Attorney General

Indianapolis, Indiana

MEMORANDUM DECISION

Mathias, Judge.

[¶1] R.H. ("Father") and T.H. ("Custodian") appeal the trial court's adjudication of Father's daughter G.H. ("Child") as a Child in Need of Services ("CHINS"). Father and Custodian raise three issues for our review, which we consolidate and restate as two issues:

I. Whether the trial court erred when it granted the Department of Child Services' ("DCS") motion to continue the fact-finding hearing beyond a statutory deadline.

II. Whether the trial court clearly erred when it adjudicated Child to be a CHINS.

[¶2] We affirm.

Facts and Procedural History

[¶3] Father has three children, including Child, who was born January 10, 2008. Child's mother ("Mother") and Father divorced, and Mother died by suicide in 2018. Later that year, Father and Custodian were dating, and Child and Child's siblings moved with Father into Custodian's house. Thereafter, Custodian began spanking Child on occasion as punishment. Child would have to remove her clothing and underwear and bend over, and Custodian used two paint "stir sticks" to spank Child. Tr. Vol. 2, p. 139. Custodian insisted that she spank Child because she believed that Father "didn't spank [Child] hard enough." Id. at 142.

Father and Custodian also occasionally punished Child by excluding her from family meals and family vacations. In addition, Father and Custodian prohibited Child from engaging in extracurricular activities as punishment. In addition Custodian told Child that Child was like Mother and "would end up like her." Id. at 153. Child has been diagnosed with ADHD, and Father has sought treatment for Child, including individual therapy.

[¶4] On May 26, 2022, DCS received a report alleging that Child "was spanked, allegedly grabbed by her throat, and slapped. And then [sic] that Henna tattoos were scribbled out on her wrist. And also [sic] alleging that she was excluded from all family vacations and dinner." Id. at 17. On May 27, Brittany Strahm, a family case manager with DCS, met with both Father and Child. Father "admitted that [Child] was being spanked, and that she did have bruising, and that she was being excluded from family dinners and family vacations." Id. at 19. But Father denied that any of that conduct was abusive. Strahm saw bruises on Child's buttocks.

[¶5] On June 7, Strahm met with Custodian, who also admitted to the allegations, but she also denied that her conduct was abusive. At one point, Custodian approached Strahm, slapped her twice across the face, and said that "that's what she had done to [Child]" and that Custodian did not "consider it abuse." Id. at 23. On June 8, DCS removed Child from Father and Custodian's home and placed her with a relative. DCS also replaced Strahm as family case manager, with Monica Straight taking over the case.

[¶6] On June 9, DCS filed a petition alleging that Child was a CHINS. DCS also moved to exclude Child from the initial hearing and from "further hearings" due to her "mental state." Appellant's App. Vol. 2, p. 33. The trial court granted the motion to exclude Child from hearings. And at the initial hearing, Father and Custodian denied the allegations in the CHINS petition.

[¶7] The trial court scheduled the fact-finding hearing for July 26, which was within the statutory sixty-day deadline to hold the hearing. See Ind. Code § 31-34-11-1(a) (2022). The day before the scheduled hearing, on July 25, DCS filed a motion to rescind the order excluding Child from the fact-finding hearing. Father and Custodian objected to that motion. The day of the hearing, the trial court denied DCS' motion and continued the hearing to August 2, which was still within the sixty-day deadline.

[¶8] In the meantime, on July 27, DCS moved the trial court to permit Child to testify via closed-circuit television. DCS attached to its motion a "Psychological/Hearsay Assessment" prepared by psychologist who concluded that,

[a]lthough [Child] expressed a desire to testify because she wants to be cooperative with the process, the current assessment indicated that her mental health is too fragile to do so without significant harm to her. However, [Child] is much less likely to have an acute worsening of her mental health symptoms ([a] panic attack) if she were to testify in the Judge's chambers (or another method which did not result in her testifying in front of her father).

Appellants' App. Vol. 2, p. 51. Father and Custodian objected to that motion and filed a motion to compel discovery.

[¶9] On August 2, the date of the fact-finding hearing, the trial court heard argument on the parties' competing motions. The court denied DCS' motion and took Father and Custodian's motion to compel under advisement. The court then heard evidence on the CHINS petition. Due to time constraints, the court continued the rest of the fact-finding hearing until August 16, over the objections of Father and Custodian. By statute, the CHINS fact-finding hearing had to be completed by August 7. On August 5, Father and Custodian filed a motion to dismiss the CHINS petition for the court's failure to hold the factfinding hearing within sixty days of the petition. At the conclusion of the factfinding hearing on August 16, the trial court heard argument on the motion to dismiss and denied the motion.

[¶10] During the fact-finding hearing, DCS presented evidence, including Child's testimony, regarding the abuse Child suffered at the hands of Father and Custodian and the impact of their conduct on Child's mental health. Following the hearing, the court issued extensive findings of fact and conclusions thereon. In relevant part, the court found and concluded:

12. Custodian noted that it is her rules in her house, that she has strict rules to maintain order, that a variety of disciplinary measures are used in a steadily escalating fashion, and that [Child] was constantly in trouble but did not respond consistently to punishment.

13. Discipline for [Child and her brother] resulted in eating cold meals or meals apart from the rest of the family.

14. Being confined to her room, staying behind on family vacations, not participating in extra-curricular activities and withholding an outward sign of affection (Father refusing to hug [Child]) were other forms of discipline.

15. Father and Custodian both consider spanking as one of the ways to teach the values they want to impose, so as minors all the children were spanked for all the years they lived in the house.

16. In May of 2022 FCM [Brittany] Strahm observed bruising on both buttocks of [Child].

* * *

27. Father testified that it had always been difficult with [Child], that nothing "resonates" with her, and he is "kind of at a loss" with her.

28. Custodian admitted that what she and Father have tried with [Child] over the years has not worked.

* * *

30. Here, the spankings were not successful to compel obedience, [Child] was required to assume an unnecessarily degrading posture, and the discipline itself resulted in physical injury to [Child].

31. The Court finds that it was unreasonable in May of 2022 and in previous spanking sessions to use wooden stir-sticks on the bare skin of [Child], an adolescent girl, who was forced to fully expose herself, and to strike with such force as to leave black and blue marks and bruises.

32. Father and Custodian have since signed a Safety Plan with DCS that allows spanking only if age-appropriate and in a way that does not leave marks or bruises.

* * *

43. On one hand, Father and Custodian persisted in escalating the severity of punishment to the point of inflicting bodily harm to [Child] a number of times over the years, including the May 2022 incident, even though they acknowledged it was not working with her.

44. On the other hand, Father has engaged over the years seeking medical help and therapy for [Child]:

(a) For years he has seen medical professionals for [Child]'s medication management.

(b) After testing, he saw to it that [Child]'s Adderall treatment for ADHD was changed to Vyvanse.

(c) He paid for [Child]'s counseling through the Bowen Center for fourteen months.

(d) He requested a referral from Dr. Ahmad for more help with [Child] and contacted Dr. Lisa Wooley as a result.

(e) Dr. Wooley accepted the referral and began meeting with the family members in June of 2022.

45. Dr. Lisa Wooley's Family Model approach to counseling is accepted by Father and Custodian.

46. Dr. Wooley has met [Child] and does not think suicidal thoughts are currently an issue.

47. With [Child], Dr. Wooley plans to provide individual therapy addressing (1) [Child]'s relationship with Father and Custodian, (2) the suicide of [Child's mother], and (3) difficulties that have occurred at the home.

48. To Dr. Wooley, an ADHD child requires utilizing different parenting approaches than with "typical" children.

49. As goals, Dr. Wooley wants to educate Father and Custodian about the developmental levels of children and provide

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