In re D.F., Kn.L., Ka.L. and M.M., Children Alleged to Be in Need of Services,
Indiana Department of Child Services, Appellee-Petitioner. L.T. (Mother) Appellant-Respondent,
from the Vanderburgh Superior Court 4, The Honorable Brett J.
Niemeier, Judge, The Honorable Renee A. Ferguson, Magistrate,
Trial Court Cause Nos. 82D04-1610-JC-1841,
82D04-1610-JC-1842, 82D04-1610-JC-1843, 82D04-1610-JC-1844
ATTORNEY FOR APPELLANT Erin L. Berger Evansville, Indiana.
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana James D. Boyer Deputy Attorney General
L.T. ("Mother") appeals the order of the
Vanderburgh Superior Court determining that her minor
children D.F., Kn.L., Ka.L. and M.M., are in need of
services. Mother claims that the Indiana Department of Child
Services ("DCS") failed to present evidence
sufficient to support the trial court's determination.
and Procedural History
Mother is the biological mother of D.F., born in April 2000;
Kn.L., born in September 2002; Ka.L., born in September 2006;
and M.M., born in August 2012. At the time relevant to this
appeal, Mother was in a relationship with the biological
father of M.M., CM., who occasionally spent the night at
Mother's home. Mother has been diagnosed with bipolar
disorder, schizophrenia, and post-traumatic stress disorder.
Mother also appeared to have an alcohol problem; she drank
alcohol on a daily basis and was frequently intoxicated.
On the night of October 7, 2016, Mother was drinking alcohol
and became intoxicated. At approximately three o'clock in
the morning of October 8, Mother, still intoxicated, burst
into the children's bedroom and told them to wake up. All
of the children, plus a family friend, were in the bedroom at
the time. Mother threatened to strike D.F. with a hair dryer
if she did not comply. Mother accused the two older girls,
D.F. and Kn.L., of sending nude pictures of themselves to
others via their cell phones. D.F. denied this, which enraged
Mother, who claimed to have proof of her accusations on her
own cell phone. Mother then struck D.F. in the face with her
fist several times. She also hit D.F. in the face with her
cell phone at least twice.
When Mother hit D.F. with the cell phone, the child ran away
from Mother and screamed for Mother to stop hitting her.
Mother continued until her boyfriend CM. intervened. Mother
became angry with CM. and kicked him out of the house. Mother
then continued her tirade against D.F. She punched D.F. in
the chest, knocking her to her knees. This caused D.F. to
have trouble breathing.
D.F. screamed at Mother to stop and stated, "Why
don't you just let us leave? . . . You don't care
about us anyways." Tr. p. 36. D.F. also mentioned her
father, who had passed away. Mother responded, "F your
daddy. Your daddy didn't care about you anyway. . . .
That's why you don't even know your daddy and your
daddy didn't want you." Id. This caused
D.F. to cry, but Mother told her to shut up and lie down.
At some point after she stopped attacking D.F., Mother turned
her attention to Kn.L., the second-oldest child in the house.
Mother took Kn.L. to the laundry room and began to hit and
punch her. Kn.L. was able to shield her face with her arms,
so Mother could not strike her in the face. Mother also
pulled and dragged Kn.L. by her hair, which ripped out some
of the braids in her hair.
D.F. and Kn.L. eventually decided to leave the house, but
Mother blocked the door, daring them to "[c]ross this
line." Id. Mother also threatened to hit D.F.
again if she attempted to leave. Not wanting to be hit again,
D.F. decided not to challenge her mother at that time. Still,
she begged Mother to let them leave. Mother told them they
could leave if they took their clothes off, which Mother
claimed, inaccurately, to have bought. At some point
thereafter, Mother calmed down enough to apologize to the
girls for her behavior. Mother asked D.F. if she forgave her,
but D.F. said, "No, I don't forgive you."
Id. at 43. Mother then told D.F. to leave.
At approximately four o'clock in the morning, D.F. and
Kn.L. left their Mother's home, wearing only sleep
clothes; D.F. did not even have shoes on. It was very cold on
that autumn night, so the children when to a friend's
house where D.F. borrowed some shoes. They then walked twenty
minutes to the home of their aunt, D.B. ("Aunt").
D.F. told Aunt that Mother had "hit us again."
Id. at 44. Seeing that D.F.'s jaw was swollen,
Aunt took the children to the hospital and telephoned the
police to report Mother's behavior. Aunt later stated
that Mother drank alcohol and smoked marijuana.
DCS was contacted, and Brittany Harper ("Harper"),
a DCS assessment manager, spoke with D.F. and Kn.L at the
hospital that morning. Both girls were still wearing only
pajama pants and small tank tops. Harper noted that Kn.L. had
a scratch on her left cheek and that a "chunk of
hair" had been ripped from her head. Id. at 18.
She also noticed swelling on D.F.'s jawline.
Harper went to Mother's home with the police to attempt
to contact Mother, but no one answered the door. Harper was
eventually able to contact Mother on October 11, 2016, at the
courthouse prior to a scheduled hearing. Harper informed
Mother that she had been trying to get a hold of her to
discuss the issues with the children. Mother admitted her
history of mental illness. When Harper requested that Mother
submit a hair and urine sample to screen for drugs, Mother
refused. Instead, "she ripped out a chunk of her hair
and threw it at [Harper] and said, That is my drug
screen.'" Id. at 20. Following this, and
with the assistance of the police, DCS removed the two
younger children, Ka.L., and M.M., from Mother's care.
The children were placed in relative care.
D.F. explained that Mother had a pattern of physically
abusing the oldest children. When D.F. was young, Mother
would abuse D.F.'s two older siblings, who are now
adults. Once these siblings moved out, Mother directed her
anger at D.F. and Kn.L.
Tiffany Austin ("Austin"), a school social worker,
became involved with Kn.L. and Ka.L. after the children came
to school with body odor so overpowering that teachers had to
open up the windows. Austin allowed the girls to shower at
school and even washed their clothes at the school. On one
occasion, Ka.L.'s clothes smelled so bad that Austin had
to wash them three times before they could be worn. Ka.L.
began to shower regularly at the school, and Austin would
provide her with toiletries, including deodorant. Austin
approached Mother to talk to her about the girls' hygiene
issues, but Mother was not receptive to Austin's
On October 12, 2016, DCS filed a petition alleging that D.F.,
Kn.L., Ka.L., and M.M. were children in need of services
("CHINS"). This was not Mother's first
interaction with DCS. In 2000, DCS substantiated a report
that Mother's newborn child was born exposed to
marijuana. Similar substantiated reports were made in 2006
and 2012, both times with the infants having been exposed to
On March 8, 2017, a CHINS fact-finding hearing was held,
presided over by the trial court magistrate. Mother testified
and denied the accusations against her, claiming that all the
other witnesses were lying. Also on March 8, the trial
court's chronological case summaries ("CCS")
contain an entry dated the same day as the fact-finding
hearing which indicates that the trial court judge
adjudicated the children to be CHINS.
A dispositional hearing was held on April 4, 2017, again
presided over by the trial court magistrate. The CCS entries
for that date provide in relevant part:
Disposition held and ordered. Zero reimbursement/support
ordered to DCS. Parental participation ordered on the mother
and [CM.]. DCS will provide bus tokens to the mother and
[CM.] for visits. DCS tendered to the mother the letter and
code regarding her random drug screens. Mother reviewed the
letter with her attorney understands what she needs to do.
Mother advises the Court she intends to file on Appeal. Court
appoints Erin Berger to represent Mother for the purposes of
Appeal. Permanency is set for 10/3/17 at 8:00 A.M. Mother and
[CM.] are ordered to appear. The Court issues its standard
dispositional order including 4-E language & findings
effective today's date. Detailed written order to be
provided by DCS.
Appellant's App. pp. 9, 15, 21, 25-26.
On April 20, 2017, Mother filed her Notice of Appeal. In her
Notice of Appeal, Mother described the order being appealed
as "Finding that the children are CHINS and
Dispositional Order." Appellant's App. p. 2. But the
trial court had not yet issued its written orders
adjudicating the children to be CHINS or its dispositional
order. It was not until May 5, 2017, that the trial court
issued written orders adjudicating the children to be CHINS
and issued dispositional orders ordering Mother to
participate in various services. These orders, however, were
signed only by the trial court magistrate, not the trial
A Trial Court Magistrate Does Not Have the Authority to Enter