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In re D.F.

Court of Appeals of Indiana

September 27, 2017

In re D.F., Kn.L., Ka.L. and M.M., Children Alleged to Be in Need of Services,
v.
Indiana Department of Child Services, Appellee-Petitioner. L.T. (Mother) Appellant-Respondent,

         Appeal 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 Indianapolis, Indiana.

          MATHIAS, JUDGE.

         [¶1] 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.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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.

         [¶11] 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.

         [¶12] 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.

         [¶13] 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 suggestions.

         [¶14] 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 marijuana.

         [¶15] 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.[1]

         [¶16] 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.

         [¶17] 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 court judge.

         I. A Trial Court Magistrate Does Not Have the Authority to Enter ...


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