Indiana

ABUSE

CORPORAL PUNISHMENT

Carter v. State, 2016 WL 6994203 (Ind. Ct. App). Defendant appealed conviction for battery resulting in bodily injury to child. Evidence supported trial court’s finding defendant’s use of force in disciplining 14-year-old child was unreasonable. Defendant struck child at least 14 times with belt, resulting in bruising and lasting pain. Prosecution thus negated parental privilege as defense, despite evidence defendant had used progressive forms of discipline without success and trial court’s finding some form of punishment was necessary to control child’s conduct.

HEARSAY

Perryman v. State, 2017 WL 2889032 (Ind. Ct. App.). Trial court did not abuse its discretion in finding minor victim’s interview at child advocacy center was reliable, as required for admission of victim’s interview statements in battery and neglect prosecution. After initial nonresponsiveness, victim was able to clearly state defendant struck him with closed first; there was no possible motive for manipulation or fabrication by victim; and he clearly demonstrated ability to distinguish truth from falsehood. When declarant appears for cross-examination, Confrontation Clause places no constraints on use of prior testimonial statements.

MANDATORY REPORTERS

Smith v. State, 982 N.E.2d 348 (Ind. Ct. App. 2013). School principal was improperly convicted for failing to make an immediate report of child abuse under mandatory reporting statute. Delay of a few hours was due to the school conducting a reasonable investigation of several issues including viewing surveillance tapes and determining whether an assault by a same-aged peer was considered child abuse. Because the statute requires reports be made in good faith, state failed to carry high criminal burden.

MEDICAL NEGLECT

Taylor v. State, 28 N.E.3d 304 (Ind. Ct. App. 2015). In criminal prosecution for felony child neglect, evidence did not support finding that mother knowingly failed to obtain medical care for child after he sustained traumatic skull fracture that led to his death. Jury was not provided evidence that defendant inflicted the injury, was present when the injury was inflicted or knew of the injury until the next day, when she found one-year-old son unresponsive.

WITNESSES

Deaton v. State, 999 N.E.2d 452 (Ind. Ct. App. 2013). Prosecutor’s closing statement that victim’s uncorroborated testimony alone could justify conviction for child molestation was not prosecutorial misconduct. Statement was a proper characterization of the law and not akin to a prosecutor attempting to improperly influence the jury by vouching for the victim’s truthfulness.

WITNESS TESTIMONY

Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012). In criminal trial for child molestation, testimony of witnesses as to their belief that child was not prone to fabrication or exaggeration was contrary to the Rules of Evidence and should not have been admitted. However, the error was harmless because the record contained substantial independent evidence of guilt in the unwavering testimony of the victim.

CUSTODY

TESTIMONY

In re J.B., 984 N.E.2d 1197 (Ill. Ct. App. 2013). Trial court properly found children dependent as to father because he sexually assaulted his daughter and his mother’s foster child. Fact that detective investigated incident some months later due to a high caseload did not require the court to discount her testimony as trial court is in best position to weigh credibility.

DELINQUENCY

PLACEMENT

In re A.B., 949 N.E.2d 1204 (Ind. 2011). In case in which probation department recommended juvenile delinquent be placed in out-of-state program because it was more cost-effective than in-state program, it would help juvenile prepare for independent living, it offered videoconferencing and supported family visits, and juvenile would be less likely to run away from out-of-state placement, state supreme court found child welfare agency’s denial of placement request was arbitrary and capricious and therefore it was required to pay for the placement.

In re R.A., 936 N.E.2d 1289 (Ind. Ct. App. 2010). Juvenile court abused its discretion in placing delinquent child with the adult corrections department rather than a residential treatment center since he had a number of psychological and medical conditions that required intensive treatment; statute required placement in the least restrictive, most family-like setting consistent with the child’s needs and community safety.

DEPENDENCY

AGENCY CASELOADS

Price v. Indiana Dep’t of Child Servs., 2017 WL 3699292 (Ind.).Indiana statute imposes maximum caseload requirements for Department of Child Services family case managers. The state supreme court denied issuance of a judicial mandate enforcing compliance with caseload maximums because the statute did not require a specific ministerial act. Instead the court found the statute allowed broad discretion to meet a required, specific outcome. FULL SUMMARY

CASE PLANS

In re A.M.-K., 983 N.E.2d 210 (Ind. Ct. App. 2013). Juvenile court order requiring mother take all medications as prescribed unduly interfered with her liberty interest given her objections based on side effects and religion. Because further evaluation was needed to determine which medications she needed to take, the agency would be justified at a later date seeking judicial approval of a plan requiring she take specific medications.

COURT HEARINGS

In re J.K., 30 N.E.3d 695 (Ind. 2015). Father appealed adjudication of 17-year-old daughter as child in need of services. Trial court violated father’s due process rights by making derogatory comments and pressuring father to waive fact-finding hearing. The trial court’s remarks and conduct, in cumulative effect, breached court’s duty of impartiality and amounted to coercion of father. 

In re L.C., 23 N.E.3d 37 (Ind. Ct. App. 2015). Father’s due process rights were violated when child was adjudicated dependent despite his challenge to allegations in the petition and without prior fact-finding hearing. Child’s mother admitted allegations but father did not, and due process requires that juvenile court conduct a fact-finding hearing prior to adjudication.

INTERSTATE COMPACT ON PLACEMENT OF CHILDREN

In re D.B., 2015 WL 5145627 (Ind. Ct. App.). Child welfare agency did not meet its burden to prove that child was dependent after unwed mother was murdered by child’s father figure. Agency did not prove that child’s mental and emotional condition was result of biological father’s inability, refusal, or neglect even though he lived out of state and was virtual stranger. Interstate Compact on Placement of Children (ICPC) does not apply to placement with out-of-state parent.

PRIOR TERMINATION

In re R.S., 987 N.E.2d 155 (Ind. Ct. App. 2013). Prior termination of parental rights was insufficient to adjudicate child dependent. Prior cases involved children with substantial special needs compounded by parents’ housing and financial issues and new child was not medically needy and parents had made progress resolving the other issues.

REASONABLE EFFORTS

In re R.H., 2016 WL 2921575 (Ind. Ct. App.). Court order that reasonable efforts to reunify child and mother were not required due to history of previous parental rights terminations did not violate Americans with Disabilities Act or Rehabilitation Act. Assuming mother had disability and was otherwise eligible to receive services, she would have been entitled to reasonable accommodations in provision of reunification services. 

SERVICES

In re A.H., 2016 WL 4399875 (Ind. Ct. App.). Mother appealed adjudication of 17-year-old daughter who experienced multiple traumas including rape and bullying as child in need of services. Daughter’s refusal to participate in available services was not result of action or omission by mother, who unsuccessfully tried to get child help she needed. Mother was willing and able to engage with all needed services.

SUBSTANCE ABUSE

In re K.S., 78 N.E.3d 740 (Ind. Ct. App.). Evidence failed to establish that mother’s use of marijuana two months before giving birth “seriously impaired or seriously endangered” her son within meaning of statute and he was therefore not dependent. Child welfare agency presented no evidence son had tested positive for marijuana or, even if he had, how positive marijuana test endangered him.

VISITATION

In re E.W., 26 N.E.3d 1006 (Ind. Ct. App. 2015). Evidence supported trial court’s decision to cease visitation and phone contact between mother and 16-year-old child. Trial court also denied change of permanency goal to adoption and instead entered goal of another planned permanent  living arrangement (APPLA). Child suffered multiple traumas while placed in mother’s care, and mother behaved inappropriately during supervised visits. Mother refused to participate in services designed to help her become a better parent, and further contact would be detrimental.

WITNESSES

In re V.C., 967 N.E.2d 50 (Ind. Ct. App. 2012). Trial court did not err in denying father’s request to subpoena his sister to testify that she could be a placement for the child or in denying his request for a continuance for that purpose. Father failed to show good cause that aunt was a necessary witness in that the agency stipulated that the aunt was willing to be a placement and court knew aunt had been previously approved to be a respite placement for the child.

JUVENILE JUSTICE

SOCIAL MEDIA

In re M.T.V., 66 N.E.3d 960 (Idaho Ct. App. 2016). Juvenile appealed delinquency adjudication for conspiracy to commit aggravated battery in plot to bring guns to school and target two students. Prosecution established requisite reasonable probability that social media records corresponded to juvenile’s and classmate’s accounts and that juvenile and classmate authored conversations. Juvenile admitted to having social media conversations with classmate and said classmate made threats to shoot up school, asked juvenile for help conducting shooting, and social media records showed juvenile agreed. 

LIABILITY

CHILD WELFARE AGENCIES

Doe #1 v. Ind. Dep’t of Child Servs., 81 N.E.3d 199 (Ind. Ct. App. 2017). Name of man who reported suspected child abuse and was told statements were confidential experienced harassment and other repercussions when his identity was released by child welfare agency. Statute prohibiting agency from identifying child abuse reporter did not create private right of action by implication. Reporter’s common law negligence claim also was not supported because hotline operator’s statement that reporter identity was confidential did not establish assumed duty.

TERMINATION OF PARENTAL RIGHTS

15 OF LAST 22 MONTHS

In re A.G., 2015 WL 6472209 (Ind. Ct. App.). Father appealed termination of parental rights, arguing that paternity was not established until four months before termination proceedings and, as a result, statutory requirement of removal from home for 15 of most recent 22 months cannot be met. Court interpreted “home” to mean home of child and not home of particular parent. When paternity was established, child could not return to father’s care because he was incarcerated. 

APPEALS

In re C.B.M., 992 N.E.2d 687 (Ind. 2013). Trial court abused its discretion in refusing to set aside adoption order after termination of parental rights order was reversed on appeal. Adoption order became voidable after reversal because it was based on termination order in that it removed need for the adoptive parents to obtain consent. 

CONTINUANCES

In re S.S., 990 N.E.2d 978 (Ind. Ct. App. 2013). Trial court did not violate mother’s due process when it denied her motion for a continuance in termination case so that she could attend in person. Though a parent has a strong constitutional interest in the care of their children, where mother had not visited in 10 months, delaying permanency further would have been inappropriate considering she was voluntarily out of state for the hearing, was aware of the hearing date, and any chance of error was lessened because she was represented.

DEVELOPMENTAL DELAYS

In re T.B., 971 N.E.2d 104 (Ind. Ct. App. 2012). Termination was not improper where developmentally delayed mother’s rights were terminated when she did not demonstrate benefit from intensive services after more than a year. Though a parents’ developmental disability alone can not justify termination, it also does not make a parent immune because, after establishing grounds, termination statute focuses on the needs of the child.

DISABILITIES

N.C. v. Ind. Dep’t of Child Servs., 2016 WL 3402814 (Ind. Ct. App.). In termination of parental rights proceedings, child welfare agency provided reasonable accommodation under Americans with Disabilities Act (ADA) to father who was deaf and had cognitive and mental health problems. Father was provided interpreter; case manager explained court-ordered services but father chose not to participate; and agency recommended counseling and that father see psychiatrist to obtain medication. Father denied he had any cognitive or thinking issues that limited his ability to understand what was occurring. 

DUE PROCESS

A.B. v. Indiana Dep’t of Child Servs., 2016 WL 5371694 (Ind. App. Ct.). Father was not deprived of due process in termination of parental rights proceedings when trial court ended his telephonic participation in final hearing after angry outbursts. Court initially allowed father to appear by phone rather than in person, but court withdrew privilege after father’s relentless abuse of it. Father rejected court’s offer to testify in person and therefore did not testify.

FAILURE TO IMPROVE

In re D.K., 968 N.E.2d 792 (Ind. Ct. App. 2012). Trial court properly terminated mother’s parental rights because she failed to remedy the conditions that led to removal over a two-year period where she continued a pattern of homelessness, moving frequently, and living with friends for several weeks despite having successfully obtained jobs that would support her maintaining her own housing.

In re D.W., 969 N.E.2d 89 (Ind. Ct. App. 2012). Trial court properly terminated father’s parental rights for failing to remedy the conditions that led to removal where, despite father’s contention that children were removed due to mother’s actions which he could not control, fact that he had failed to participate in substance abuse services or remain drug-free supported determination.

In re M.A.J., 972 N.E.2d 394 (Ind. Ct. App. 2012). Trial court erred in terminating mother’s parental rights for failing to remedy the conditions which led to removal. Court focused on the substance abuse issues and domestic violence at the time of removal, which while relevant, were not properly balanced with mother’s progress since that time given that she provided 30 negative drug screens and had severed herself from any abusive relationships.

INCAPACITY

In re A.P., 981 N.E.2d 75 (Ind. Ct. App. 2012). Trial court properly found mother’s actions constituted a continued serious threat to her children’s well-being sufficient for termination. While mother did complete a parenting class and a religious-based 12-step program while incarcerated, the court could reasonably have attached more weight to the dozens of drug screens she failed when not in jail, concluding she was unable to correct her own behavior absent a highly structured environment.

LEGAL REPRESENTATION

In re G.P., 2012 WL 1278087 (Ind. Ct. App.). Any error of the trial court in failing to appoint an attorney for mother earlier in dependency case did not require reversal of termination. Mother failed to show how a different result might have been reached. Further, nothing specific was apparent from the record, such as the need to object to information during review hearings that would have led to a different result. Rather, mother’s simple failure to follow through with tasks and programs resulted in termination.

PERMANENCY

In re H.G., 959 N.E.2d 272 (Ind. Ct. App. 2011). Termination was not appropriate where primary harm to children by maintaining their parental relationships was merely a lack of permanency. Though the parents had substance abuse problems and resulting incarcerations that impeded reunification, they had taken advantage of services that were available and had maintained positive visitation and bonds with children.

REASONABLE EFFORTS

In re J.W., Jr., 27 N.E.3d 1185 (Ind. Ct. App. 2015). Alleged failure of child welfare agency to provide parenting aid services, supervised visitation, and random drug screenings did not toll statutory waiting period for termination of parental rights. Language of statute was unambiguous and did not condition waiting period on agency providing services to parents. Parents could have moved to dismiss petition to terminate parental rights for alleged failure to provide services but did not do so, and parents repeatedly failed to cooperate with, attend, or make progress in parenting services, visitation, and drug screens.

REASONABLE EFFORTS

S.G. v. Ind. Dep’t of Child Servs., 2017 WL 117290 (Ind. Ct. App.). Mother appealed juvenile court’s adjudication of her four children as dependent and its determination child welfare agency need not make reasonable efforts to reunify family. Statute providing agency need not make reasonable effort did not violate mother’s substantive due process rights. Mother was able to temporarily reunite with children following each removal by doing bare minimum, but failure to take advantage of opportunities to make permanent changes resulted in perpetual cycle of instability for children.

REPRESENTATION

In re D.T., 981 N.E.2d 1221 (Ind. Ct. App. 2013). Minor father’s due process rights were not violated when the court did not appoint a guardian ad litem (GAL) for him in case that ended in termination of parental rights. While the court had discretion to appoint a GAL, father’s attorney and mother were present in the case, making the risk for erroneous deprivation low.

SUBSTANCE ABUSE

In re K.T.K., 989 N.E.2d 1225 (Ind. 2013). Termination was proper where mother failed to comply with substance abuse services for over a year while children were in foster care. Trial court acted within its discretion in putting less weight on mother’s period of sobriety that coincided with her incarceration. Other evidence revealed she was arrested twice in the first year of the case, including once for public intoxication.

TESTIMONY

In re O.G., 65 N.E.3d 1080 (Ind. Ct. App. 2016). Parents appealed juvenile court’s order terminating their parental rights to child. Trial court permitted guardian ad litem (GAL) to testify based on responsibility to be “voice of children” in proceedings. Father argued juvenile court wrongly permitted GAL to testify about what child told her he wanted. Appellate court, citing child welfare agency’s failure to cite any authority in rule, statute, or case law creating exception to hearsay rule for GALs, found her testimony inadmissible hearsay and remanded case.

TIME IN CARE

In re B.F., 976 N.E.2d 65 (Ind. Ct. App. 2012). Trial court erred in terminating parents’ rights prematurely when there was no allegation of aggravated circumstances. Though child had been in care over six months, statutory ground for failing to remedy conditions after six months in care specified that a parent must have failed for six months under a dispositional order, which had not elapsed by that date in case.

In re BI.B, 69 N.E.3d 464 (Ind. 2017). Child welfare agency failed to prove either of two statutory waiting periods required to terminate parental rights – (1) a child has been removed from a parent for at least six months under a dispositional decree, or (2) a child has been removed from the parent and under agency supervision for 15 of the most recent 22 months from the removal date. The agency failed to prove the 15 of 22 months waiting period had passed, and failed to allege the six month waiting period.

WELL-BEING

In re N.Q., 996 N.E.2d 385 (Ind. Ct. App. 2013). Trial court erred in terminating parental rights where termination order relied primarily on evidence from a prior hearing many months before and a number of key findings were contradicted by the parents’ up-to-date evidence about their legal income and housing. In addition, the new evidence presented by the agency addressed children’s well-being in the foster homes and desire to stay there, which did not meet the high constitutional and statutory standard required for termination.