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In re L.S.

Court of Appeals of Indiana

August 25, 2017

In the Matter of: L.S., C.S., and W.S. (Minor Children in Need of Services);
Indiana Department of Child Services, Appellee-Petitioner. J.S. (Father), Appellant-Respondent,

         Appeal from the Tippecanoe Superior Court The Honorable Faith A. Graham, Judge Trial Court Cause No. 79D03-1611-JC-322

          ATTORNEY FOR APPELLANT Carlos I. Carrillo Greenwood, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] J.S. ("Father") appeals the trial court's denial of the Department of Child Services' ("DCS") petition in which DCS alleged that Father's children, L.S., C.S., and W.S. (collectively "the Children"), are children in need of services ("CHINS"). Father presents five issues for our review, which we consolidate and restate as the following three issues:

1. Whether the trial court erred when it denied Father's requests for supervised visits with the Children.
2. Whether the trial court violated Father's right to due process when it conducted the CHINS fact-finding hearing.
3. Whether the trial court clearly erred when it denied the CHINS petition.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] Father and S.S. ("Mother") married and had three children together: L.S., born October 14, 2005; C.S., born January 27, 2008; and W.S., born November 5, 2009. In 2014, after DCS received a report of Father's "violence against Mother, " the trial court adjudicated the Children to be CHINS. Appellant's App. Vol. 2 at 46. After that CHINS case was closed, the parents continued marital counseling, and they continued counseling and medication for L.S., who had been diagnosed with Disruptive Mood Disregulation Disorder ("DMDD") and Attention Deficit Disorder ("ADD"). At some point, Mother filed a petition for dissolution of the marriage, but she later dismissed her petition.

         [¶4] Then, on October 28, 2016,

law enforcement responded to the family home after a 911 call regarding a domestic violence incident in the presence of the children. After initial hesitation, Mother cooperated with law enforcement by answering questions and providing information. DCS also conducted an investigation into the circumstances. Mother report[ed] Father had "belted" Mother back before grabbing and wrestling [L.S.] to the ground where Father held her down. Mother also reported Father held her by the neck against the wall screaming very loudly in her ear. Mother disclosed a history of Father exhibiting controlling and manipulative behavior but assert[ed] past incidents ha[d] not included physical aggression to th[at] extent. Father report[ed] [L.S.] attempted to unilaterally "hijack" a planned family trip to Chicago. Father spank[ed] [L.S.] with a belt after [L.S.] struck Father in the head with a suitcase.

Appellant's App. at 77. After investigating the incident on October 28, DCS filed a petition alleging that the Children were CHINS. And on November 15, 2016, a trial court issued a protection order that restrained Father "from any contact" with Mother or the Children. Protection Order at 1.[1]

         [¶5] The trial court held a fact-finding hearing on the CHINS petition over the course of four days from January 12 to April 21, 2017. On April 24, the court issued its order denying the petition, and it found and concluded in relevant part as follows:

10. Mother filed a Petition for Dissolution of Marriage . . . on November 15, 2016. A Provisional Order issued January 3, 2017, and modified March 29, 2017, awards Mother possession and use of the marital residence. Matters of custody, parenting time and support were referred to Tippecanoe Superior Court II pending the conclusion of the CHINS proceeding.
* * *
12. The State of Indiana filed charges against Father for Invasion of Privacy and a criminal case is pending . . . .
13. Mother admits she has not continued her own individual counseling since the prior CHINS case closed. Mother has a plan for appropriate alternative housing in the event Mother and the [C]hildren are unable to continue residing in the marital residence. Mother gained employment as a substitute teacher and is renewing her teaching license for future employment.
14. Father reports residing in his van or at a homeless shelter. Father is seeking housing assistance through Lafayette Transitional Housing. Father's employment was terminated.
15. Father initially admitted that [L.S.] is a Child in Need of Services. At the conclusion of the Fact Finding hearings, Father testified that[, ] without an adjudication, Father would be unable to gain access to the [C]hildren and Mother would be able to succeed with a strategy for adoption.
16. Both parents indicate [L.S.] was previously diagnosed with [DMDD and ADD] by Laura Hawkins around the Summer of 2015. Both parents indicate [L.S.] was prescribed medication which improved [L.S.'s] behavior.
17. Father asserts Mother unilaterally ceased [L.S.'s] medication in around February 2016 resulting in a "new peak of violence" from [L.S.] including attacks on siblings and parents. Father asserts Mother downplays the extent of [L.S.'s] behavior and is incapable of disciplining [L.S.] and the other children. Mother agrees medication did calm [L.S.], but worries that the medication is for the benefit of the parents and not the benefit of ...

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