RILEY, Judge.
Appellant-Respondent, J.L. (Mother), appeals the trial court's finding that her minor children, Ju.L. and Je.L., are children in needs of services (CHINS).
We affirm.
Mother raises four issues on appeal, which we consolidate and restate as the following two issues:
Mother and A.L. (Father) are the parents of two boys, Ju.L. and Je.L., born on March 19, 2004, and February 2, 2006, respectively. During the incidents in question, Mother and Father were in the midst of a contested dissolution proceeding commenced by Mother in May 2008.
After the commencement of the dissolution proceeding, but before July of 2009, the Marion County Division of the Department of Child Services (DCS) received multiple allegations that Father was abusing Ju.L. and Je.L.
DCS investigated many of these reports and interviewed the boys on multiple occasions. Jennifer Daugherty (Daugherty), an investigator with DCS, investigated reports regarding Ju.L. and Je.L. dated July 31, 2009, August 6, 2009, and August 17, 2009. During her investigation, Daugherty interviewed Mother and Father and observed a forensic interview of Ju.L. and Je.L. Based on her observations, Daugherty did not substantiate abuse by Father.
Tracey Pendleton (Pendleton), a Family Case Manager (FCM) with DCS, investigated three reports on December 28, 2009, January 31, 2010, and February 1, 2010. During his investigation, Pendleton did not find any bruises on the boys or any other credible evidence to support the allegations that Father had physically or sexually abused them. Instead, Pendleton substantiated emotional abuse against Mother based on the nature of the allegations and the lack of evidence.
Jamie Walden (Walden), an FCM with DCS, also investigated reports dated March 2, 2010 and March 18, 2010. As part of her investigation, Walden interviewed Mother, Father, and the boys. She did not see any bruises on the boys, and she concluded that the allegations against Father were unsubstantiated.
On February 12, 2010, DCS filed a petition alleging that Ju.L. and Je.L. were CHINS based on Mothers' numerous unsubstantiated allegations. In the CHINS petition, DCS alleged that Mother had
(Appellant's App. p. 80).
After filing its CHINS petition, DCS decided to investigate all future reports from its office in Hendricks County, Indiana. DCS assigned an ongoing case manager, Angela Baney (Baney), to conduct such investigations. During her work with Ju.L. and Je.L., Baney looked into an allegation that Father had pinched Ju.L.'s penis with nail clippers in the bathroom at Monster Golf. She made one unannounced visit to Father's home, visited Ju.L. at school twice, visited the boys at Mother's home twice, and was present on March 26, 2010, for a forensic interview of Ju.L. As a result of her investigation, she found that the allegations against Father were unsubstantiated.
On April 21, 2010, DCS also assigned Trina Gunn (Gunn), an FCM, to Ju.L. and
During Gunn's investigation of the allegations concerning Ju.L. and Je.L., Mother sent Gunn a DVD video of the boys talking to Mother about Father. In the video, Ju.L. exposed his penis to the camera and made such statements as "I love you mommy[.] I hate you daddy." (Tr. p. 159). Mother also sent several e-mails to Gunn throughout the investigation. In one e-mail dated April 27, 2010, Mother attached pictures of Ju.L. and Je.L. taken on April 21, 2010 and April 25, 2010, that she claimed substantiated Father's abuse. However, DCS did not find marks indicative of abuse when it reviewed the photos. Subsequently, Gunn substantiated emotional abuse as to Mother.
On April 29, 2010, Dr. Jonni Gonso (Dr. Gonso) completed a court-ordered custody evaluation pursuant to Mother and Father's pending dissolution. In her evaluation, Dr. Gonso reviewed 11 DCS complaints up to March 18, 2010, all pleadings in the divorce case, pleadings and orders from the CHINS case, various e-mails and faxes, and documents provided by Mother concerning her divorce and the boys. Dr. Gonso also interviewed Mother, Father, Ju.L. and Je.L.—both individually and together—and evaluated Mother and Father under the Minnesota Multiphasic Personality Inventory II (MMPI-2).
During one interview with Dr. Gonso, Ju.L. told Mother that Father had only touched his penis on accident and that Ju.L. had previously lied about Father poking him in the eye with a needle. Ju.L. also stated that his maternal grandmother had told him to say that Father had poked him. During an interview on January 4, 2010, Ju.L. admitted that Father did not give him black pills and "did [not] pull out [his] stitches."
Based on the results of the MMPI-2 and her interviews, Dr. Gonso formed the opinion that Mother's profile was indicative of someone with intense chronic anger and that Mother was likely exhibiting alienating behaviors that could eventually cause Ju.L. or Je.L. to refuse contact with Father. She recommended that Father have sole legal custody, that Mother not be permitted to take the children to any kind of medical appointment without Father's attendance or agreement, and that Mother and Father share physical custody on a "2/5 schedule." (Tr. p. 140).
Following the reports made during April of 2010, DCS made an emergency motion
On June 4, June 29, and July 14, 2010, the trial court conducted a factfinding hearing on DCS's petition alleging that Ju.L. and Je.L. were CHINS. At the conclusion of the evidence, the trial court took the matter under advisement and entered its findings of fact and conclusions of law on August 11, 2010. In its findings of fact and conclusions of law, the trial court found that Ju.L. and Je.L. were CHINS because they had been subjected to emotional abuse by Mother. The trial court stated that
(Appellant's App. p. 66). The trial court also found that:
(Appellant's App. p. 67).
Mother now appeals. Additional facts will be provided as necessary.
In Indiana, a trial court must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. In re N.E. v. IDCS, 919 N.E.2d 102, 105 (Ind.2010). We have recognized that parents have a fundamental right to raise their children without undue influence from the State, but that right is limited by the State's compelling interest in protecting the welfare of children. G.B. v. Dearborn Cnty. Div. of Family and Children, 754 N.E.2d 1027, 1032 (Ind.Ct. App.2001). The CHINS statutes do not require that a trial court wait until a tragedy occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind.Ct.App.2009). Instead, a child is a CHINS when he or she is endangered by parental action or inaction. Id.
Where a party is appealing from a negative or adverse judgment, as here, the standard of review on appeal is the clearly erroneous standard. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind.Ct.App.2005). Under the clearly erroneous standard, we will set aside the trial court's findings and conclusions only when the record contains no facts or inferences supporting them and we are left with a firm conviction that a mistake has been made. Id. In reviewing the record, we will neither reweigh the evidence nor assess the credibility of witnesses, and we will consider only the evidence most favorable to the judgment. Id.
Mother first argues that the trial court erred when it determined that Ju.L. and Je.L. were CHINS pursuant to a statute not cited in the CHINS petition. Indiana Code sections 31-34-1 through -11 list 11 different circumstances under which a
I.C. § 31-34-1-1. Under the abuse statute, a child is a CHINS if:
I.C. § 31-34-1-2.
Mother's primary contention in regards to the abuse and neglect statutes is that DCS did not adequately provide her with notice of the grounds DCS would use to allege that Ju.L. and Je.L. were CHINS. Specifically, in its petition, DCS alleged that:
(Appellant's App. p. 79). In this paragraph, DCS cited I.C. § 31-34-1 generally, which encompasses both the neglect and abuse statutes, but included language mirroring the language of the neglect statute. In contrast, the trial court eventually decided that Ju.L. and Je.L. were CHINS according to the criteria listed in the abuse statute. On appeal, Mother contends that, because the language in the paragraph mirrored the language of the neglect statute, she did not have notice that the trial court would also consider the criteria codified in the abuse statute. In response, DCS notes that it also alleged in paragraph 5(A) of its petition that:
(Appellant's App. p. 80). According to DCS, this paragraph put Mother on notice that the abuse statute was also a ground for the petition because her acts towards the children were also at issue.
The question of notice in a CHINS petition is governed by Indiana Code section 31-34-9-3, which establishes the requirements for the contents of a CHINS petition. Under I.C. § 31-34-9-3, a CHINS petition must contain both "[a] citation to the provision of juvenile law that gives the juvenile court jurisdiction in the proceeding" and "[a] concise statement of the facts upon which the allegations are based, including the date and location at which the alleged facts occurred." We have interpreted these provisions as necessary to provide a parent, custodian, or guardian with proper notice in a CHINS proceeding so that the parent or guardian may refute the assertions. Maybaum v. Putnam Cnty. Office of Family & Children, 723 N.E.2d 951, 954 (Ind.Ct.App.2000). This is, in part, "because we have long recognized that parental rights have [a] constitutional dimension." Id. However, we have also held that issues not raised by the pleadings may be tried by the express or implied consent of the parties. In re V.C., 867 N.E.2d 167, 178-79 (Ind.Ct.App.2007).
In V.C., we addressed the issue of whether the trial court may adjudicate a child a CHINS on grounds different from those alleged in a CHINS petition. Id. at 177. There, DCS filed a CHINS petition alleging that V.C. was a CHINS because V.C.'s mother had failed to protect her from molestation. Id. The trial court ultimately concluded, however, that V.C. was a CHINS because her mother's acts and omissions had seriously endangered her physical and mental health. Id.
On appeal, we analyzed Ind. Trial Rule 15(B) to determine whether the trial court erred by finding V.C. a CHINS based on different grounds than those alleged in the petition. Id. T.R. 15(B) provides that:
In re V.C., 867 N.E.2d at 178 (internal citations omitted) (emphasis added). When we applied this standard to V.C.'s circumstances, we determined that V.C.'s mother did have adequate implied notice that evidence would be presented that her acts or omissions were endangering V.C.'s physical and mental health. Id. Our reasoning was that V.C.'s father had asked DCS to amend the CHINS petition to allege that V.C. was a CHINS because V.C.'s mother was endangering V.C.'s mental health. Id. This action constituted sufficient notice, even though—as in the instant case—DCS never amended the petition. Id.
In contrast, Mother here cites Maybaum in support of her arguments that the petition was insufficient to put her on notice. In Maybaum, the Putnam County Office of Family & Children (OFC) alleged that P.M. was a victim of a sex offense at the hands of her father under I.C. § 31-34-1-3, but the trial court ultimately held that P.M. was a CHINS under I.C. § 31-34-1-2 because P.M.'s father had failed to protect her from injury. Maybaum, 723 N.E.2d at 953. On appeal, we determined that "implied consent will not be found if the parties did not know or could not have known that the unpleaded issue was being litigated." Id. at 955. We reviewed the record and determined that the OFC did not "present any specific evidence which would have placed the Maybaums' attorney on notice that it was attempting to show that one of P.M.'s siblings or another person, not P.M.'s father, caused P.M.'s penetrating injury." Id. As a result, we concluded that the trial court erred in holding that P.M. was a CHINS on grounds different than those alleged in the OFC's petition. Id.
Here, we conclude that our decision in V.C. is more applicable to the facts of this case than our decision in Maybaum because DCS did provide Mother with implied notice that her acts and omissions could be grounds for the CHINS proceeding under the abuse statute. In paragraph 5(A) of DCS's petition, DCS stated that
(Appellants App. p. 80). This language implicates the language of the abuse statute, which establishes that a child is a CHINS if "the child's physical or mental health is seriously endangered due to injury by the act or omission of the child's parent, guardian, or custodian." I.C. § 31-34-1-2. Moreover, as we determined in S.W., factual allegations in a CHINS petition may suffice to put a parent on notice that the factual allegations could be at issue in a CHINS proceeding. In re S.W., 920 N.E.2d 783 (Ind.Ct.App. 2010). Therefore, it is not relevant that paragraph 5(A) is a statement of factual allegations rather than the trial court's legal jurisdiction.
Mother contends, though, that V.C. is not applicable because V.C.'s mother did not object at trial to the litigation on the grounds not listed in the CHINS petition, whereas Mother here did object. We do not find this argument persuasive because we find that the controlling factor in V.C. was the issue of notice, not whether the parties objected to the trial court's adjudication of the alternate grounds. Our interpretation prevents parties from pleading ignorance where adequate notice is given. As we stated in V.C., implied notice exists where "a reasonably competent attorney would have recognized that the unpleaded issue was being litigated." In re V.C., 867 N.E.2d at 178 (emphasis added). In further support of this interpretation, we note that in V.C. we did not even address the issue of whether V.C.'s mother had objected when we analyzed whether the trial court had properly decided that V.C. was a CHINS based on a different ground than that listed in the petition. We merely addressed the issue of notice. In sum, we conclude that the DCS provided Mother with adequate notice.
Next, Mother argues that the trial court erred in its findings of fact and conclusions of law. When a trial court has entered special findings of fact and law, we apply a two-tiered standard of review on appeal. Schrader v. Porter Cnty. Drainage Bd., 880 N.E.2d 304, 307 (Ind.Ct.App. 2008). First, we determine whether the evidence supports the findings, and, second, whether the findings support the judgment. Id. We will set aside the trial court's findings and conclusions only if they are clearly erroneous and a review of the record leaves us firmly convinced that a mistake has been made. Id. We neither reweigh the evidence nor reassess the credibility of the witnesses when we review the trial court's findings. Id. Instead, we must accept the ultimate facts as stated by the trial court if there is evidence to sustain them. Id.
With respect to the trial court's findings of fact and conclusions of law, Mother argues that the trial court erred in concluding that Ju.L. and Je.L. were CHINS because there were no facts in the CHINS petition to support the conclusion that they had been subjected to "numerous exams and interviews." (Appellant's App. p. 66). In her brief, Mother seems to include three sub-arguments within this broader claim. Therefore, we will address each component separately.
First, Mother alleges that
(Appellant's Br. pp. 20-1). We interpret this as two arguments: (1) the CHINS petition did not provide Mother with adequate notice because it did not specify the dates or locations of the instances at issue; and (2) the trial court erred because its conclusions of law relied on facts not listed in DCS's CHINS petition.
In regards to the first argument, DCS states in its petition that "Further information is provided in the attached Preliminary Inquiry and Affidavit by the Family Case Manager." (Appellant's App. p. 80). In the Preliminary Inquiry and Affidavit (Preliminary Inquiry) written by FCM Pendleton, DCS does identify specific exams and interviews, along with relevant dates. Among other allegations, it lists that the children were interviewed and examined for bruises, marks, or welts on January 12, 2010 and February 1, 2010. The Preliminary Inquiry also states that the children completed a sexual abuse exam on January 31, 2010. This information satisfies I.C. § 31-34-9-3's requirement that a CHINS petition contain "[a] concise statement of the facts upon which the allegations are based, including the date and location at which the alleged facts occurred." Accordingly, Mother received proper notice that the interviews and examinations of Ju.L. and Je.L. would be at issue during the CHINS action.
Mother's second argument is that the trial court erred because it relied on facts not contained in DCS's petition to determine that the children were CHINS. However, we do not see anywhere in Mother's Brief where she has provided legal precedent for the argument that a trial court may only make conclusions of law based on the facts listed in a CHINS petition. Instead, that argument seemingly contradicts the purpose behind I.C. § 31-34-11-1, which requires a juvenile court to "complete a factfinding hearing not more than sixty (60) days after a petition alleging that a child is in need of services is filed...." We also stated in Maybaum, which Mother cites, that the purpose of providing factual allegations in a CHINS petition is to provide parents with notice of the facts that will be at issue at the factfinding hearing so that the parents can challenge the allegations. Maybaum, 723 N.E.2d at 954 ("Presumably, these provisions were enacted to give the child's parent, guardian, or custodian notice of the allegations and the opportunity to contradict the OFC's case."). In other words, the purpose of a CHINS petition is not to provide the exclusive factual foundation for the trial court's subsequent conclusions of law. Accordingly, we do not find merit in Mother's argument.
Finally, Mother argues that the trial court's findings of fact do not support its conclusion of law that the children are CHINS because the trial court's findings of fact do not justify the conclusion that Mother has caused the children to be exposed to numerous exams and interviews. In support of her argument, Mother compiles sections of the trial court's separate conclusions of law into the following broad conclusion:
(Appellant's Br. p. 20) (emphasis added). Mother's compilation is deceptive, though, because it confuses the trial court's conclusions. This summation makes it seem like the trial court based its decision that Ju.L. and Je.L. were CHINS on the fact that Mother exposed Ju.L. and Je.L. to "numerous exams and interviews." (Appellant's Br. p. 20). Instead, it is apparent within the context of the trial court's unabridged Order that it alluded to the children's exams and interviews merely with respect to the issue of notice. The trial court's conclusion of law No. 9 states that:
(Appellant's App. p. 66) (emphasis added). In contrast, the trial court stated in its conclusion of law No. 8 that:
(Appellant's App. p. 66). As is apparent in these unabridged versions of the trial court's conclusions, the trial court merely referred to the petition's allegations of numerous interviews and exams to support its proposition that Mother had notice that I.C. § 31-34-1-2 could be a grounds for the CHINS proceeding. The trial court's conclusion of law No. 9, then, clarifies that the basis for its CHINS finding is that Mother has never wavered in her belief that the boys are being abused by Father, even though the boys have admitted to lying and there has never been any physical evidence of abuse—not solely the evidence of numerous interviews and examinations. Therefore, we will not address Mother's arguments that the examinations were medically necessary and that she did not cause the children to be interviewed.
Based on the foregoing, we conclude that (1) the trial court did not err when it determined that Ju.L. and Je.L. were CHINS pursuant to a statute not explicitly cited in the CHINS petition; and (2) the trial court did not err in its findings of fact and conclusions of law.
Affirmed.
DARDEN, J., and BARNES, J., concur.
