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K.B. v. Indiana Dep't of Child Servs.

Court of Appeals of Indiana

January 16, 2015

K.B. and M.B. (Minor Children), And M.W.B. (Father), Appellant-Respondent,
v.
THE INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner

Page 998

APPEAL FROM THE LAWRENCE CIRCUIT COURT. The Honorable Andrea McCord, Judge. Cause No. 47C01-1211-JC-462 & 47C01-1211-JC-463.

ATTORNEY FOR APPELLANT: DANIEL DIXON, Bedford, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ROBERT J. HENKE, Deputy Attorney General; CHRISTINE REDELMAN, Deputy Attorney General, Indianapolis, Indiana; Co-Appellee's Special Advocate: DARLENE STEELE McSOLEY Bedford, Indiana.

RILEY, Judge. MATHIAS, J. and CRONE, J. concur.

Page 999

OPINION

RILEY, Judge

STATEMENT OF THE CASE

Appellant-Respondent, M.W.B. (Father), appeals the trial court's Order adjudicating his minor children, M.B. and K.B. (collectively, Children), to be Children in Need of Services (CHINS).

We affirm.

ISSUES

Father raises two issues on appeal, which we restate as:

(1) Whether there was sufficient evidence to support the trial court's determination that the Children are CHINS; and
(2) Whether the trial court's intervention was necessary to coerce Father into providing the Children with necessary care and treatment.

FACTS AND PROCEDURAL HISTORY

Father and K.M. (Mother)[1] are the biological parents of M.B., born on September 13, 2001, and K.B., born on April 10, 2005. Father and Mother were divorced and they shared physical and legal custody of the Children. Father and the Children lived with his girlfriend (Girlfriend), who was also the Children's custodian. In addition, Girlfriend's minor daughter, M.A.,[2] born on February 5, 2003, lived in the house with Father and the Children. M.A. is Girlfriend's child from a previous marriage and Girlfriend was going through divorce proceedings.

On September 1, 2012, the Lawrence County Police Department received a call that Father and Girlfriend had a domestic fight in the presence of all three children. Officers Chris Roberts (Officer Roberts) and Officer B.J. Fulkerson (Officer Fulkerson) were sent to the residence to investigate. Girlfriend was the only person present in the home; Father had left, and M.B. and K.B. had been picked up by Mother's boyfriend. As the officers approached the residence, they drove past M.A.'s grandfather's vehicle and saw that M.A. was seated in the back seat and was crying. When Officer Roberts walked up to the house, he noticed a broken window. The officers knocked several times before Girlfriend answered the door. As Girlfriend was narrating the night's events,

Page 1000

the Officer Roberts noticed that Girlfriend seemed nervous, could not stand still, jumped from subject to subject, and " her jaw muscles kept flexing." (Transcript p. 97). The next day, Father returned to the residence and hashed things out with Girlfriend. Ultimately, both resolved that it was safe to bring the children home, and when the children returned, they all talked, watched movies, and played games late into the night.

On the morning of September 3, 2012, the Indiana Department of Child Services (DCS) received a report of the domestic dispute between Father and Girlfriend. That same day, DCS family case manager Sylvia Nowakowski (FCM Nowakowski), accompanied by a law enforcement officer, visited Father's and Girlfriend's home. There was a lengthy delay before anyone answered the door; finally, Father and Girlfriend came out, stood on the front porch, and denied FCM Nowakowski access to their home. According to FCM Nowakowski, Father and Girlfriend seemed impaired. More particularly, they were " pacing back and forth, couldn't stand still, [and] appeared very paranoid." (Tr. p. 45). They both had enlarged pupils, and their eyes were blood shot. When questioned regarding the domestic episode of September 1, Father recounted that he had gotten into a heated argument with Girlfriend, that Girlfriend had unintentionally broken a window, and because of the incident, they had arranged for the removal of all three children from the home. FCM Nowakowski requested Father and Girlfriend to take a drug screen, but both declined.

When FCM Nowakowski insisted that she needed to see the children, she was denied permission. After further pressing, Father eventually summoned M.A. to the front porch and started bombarding her with questions such as " [A]re you taken care of [?] [A]re you fed?" --which were followed by M.A.'s short, affirmative answers. (Tr. p. 86). On seeing how frightened M.A. appeared to be and fearing for M.A.'s safety, FCM Nowakowski decided not to pursue her questioning. In the end, FCM Nowakowski arranged for a family team meeting for the next day at 4:00 p.m. so as to address the domestic violence issue.

On September 4, 2012, prior to the 4:00 p.m. family team meeting, FCM Nowakowski, without approval from Father or Girlfriend, visited the three children at their schools for a private meeting. According to FCM Nowakowski, the fact that she was unable to interview the children the day before, presented exigent circumstances requiring a private conference with the children. FCM Nowakowski first questioned M.A. who expressed that she did not want to get anyone into trouble. M.A., however, admitted that there were bad things happening in her home. M.A. informed FCM Nowakowski that Girlfriend had once told her that she had used cocaine, and even though she had never seen Girlfriend use drugs, Girlfriend had voiced to her that she had recently used drugs. M.A. could not recall the exact date Girlfriend had made that statement. On questioning M.A. about the domestic incident occurring on September 1, M.A. stated that M.B. and K.B. were present during the domestic episode. M.A. stated that she was scared and that she called her paternal grandfather to pick her up from the residence. When FCM Nowakowski asked M.A. if she felt safe in the home, M.A. repeated that she ...


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