In the Matter of D.P. (Minor Child), and, M.P. (Father), Appellant-Respondent,
The Indiana Department of Child Services, Appellee-Petitioner.
from the Marion Superior Court Trial Court Cause No.
49D09-1603-JC-1071 The Honorable Marilyn A. Moores, Judge The
Honorable Diana Burleson, Magistrate
Attorney for Appellant Kimberly A. Jackson Indianapolis,
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
J. Henke James D. Boyer Deputy Attorneys General
M.P. ("Father") appeals the trial court's
finding that his child, D.P., is a child in need of services
("CHINS"). We reverse.
The restated issue before us is whether there is sufficient
evidence to support the determination that D.P. is a CHINS.
On March 28, 2016, the Marion County Office of the Department
of Child Services ("DCS") filed a petition alleging
that D.P., who was born in 2007, was a CHINS. The petition
alleged that, on March 11, 2016, Father was taken to a
hospital because he was acting "bizarrely, " was
found to be on multiple drugs, and that Father has a history
of substance abuse. App. p. 22. The petition further alleged
that D.P. had missed twenty-three days of school and was
suffering from educational neglect.
On April 14, 2016, the trial court held a pre-trial hearing.
Subsequently, the trial court entered an order stating in
part that Father's attorney "reports father was
engaged in a methadone program in the past. [Counsel] states
that father was taking opiates as he is no longer in a
methadone program, but mother did not know and was not
providing the opiates." Id. at 50. D.P.
remained in Mother's care and custody, but Father was
ordered to leave the home.
The trial court conducted a fact-finding hearing on August
29, 2016. Father did not appear at the hearing. At the outset
of the hearing, counsel for Mother stated, "My client is
going to agree that her child is in need of services because
they're [sic] pending domestic violence charges that were
filed against father." Tr. p. 5. A family case manager,
Kyla Thomas, testified for DCS that Father had been referred
for services, including twice for a substance abuse
assessment, but that he had only participated in services
"until July." Id. at 9. Thomas then stated
that she had not spoken to Father since April 2016 and that,
"I learned today that he's incarcerated."
Id. Father's counsel objected to this statement.
Thomas then was asked how she knew that Father was
incarcerated, and she said, "the Marion County website,
" without elaboration. Id. at 10. Father again
objected on hearsay grounds, which the trial court overruled.
Thomas also testified that DCS had "concerns with
[Father's] repeat substance abuse . . . ."
Id. at 11. Father objected to this statement on
hearsay grounds because it was based on third-party reports,
to which DCS's attorney said, "I got nothing for
that one." Id. The trial court then asked what
Thomas's basis for her testimony was, and she said,
"The last screens I have for [Father] are
positive." Id. The trial court sustained
Father's renewed objection to that statement as hearsay
and no more evidence was presented on Father's drug use.
Thomas then testified that DCS had concerns about domestic
violence in the family. Father again objected to this
testimony on hearsay grounds. The following colloquy then
[DCS]: Judge, I have a cause number for you for the domestic
violence case. There is a no-contact order with-listing
[Mother] as the victim.
[Father's attorney]: Judge, if I can follow up you know I
don't believe that that makes anything not hearsay unless
this, unless DCS has certified copies of something you know
or . . .
[DCS]: Rule 201 allows you to take judicial notice of records
of the Court.
[Court]: And have you had conversations with either of the,
the parents about the domestic violence.
[Thomas]: When I, I asked about the incarceration and mom
didn't-she just disclosed that it was stupidity that got
him arrested, but didn't mention anything about the
incident that occurred and yesterday indicated that she wants
to reunify and have the family back together.
[Thomas]: Still not know anything about it.
[Court]: Alright. What is the cause number that you have?
* * * * *
[Court]: Okay. Alright, I'll-I'll overrule the
objection, but I guess it's sustain in a sense that
I'm going to allow the cause number to be put into the
record and I will take judicial notice that it is felony case
out of Court G2 and that's in Marion County?
Id. at 12-13.