Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020 Page 1 of 27

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Kimberly A. Jackson

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of:

L.J.Y. (Minor Child),

And

J.Y. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

January 30, 2020

Court of Appeals Case No.

19A-JC-1652

Appeal from the Allen Superior 

Court

The Honorable Charles F. Pratt, 

Judge

The Honorable Lori K. Morgan, 

Magistrate

The Honorable Sherry A. Hartzler, 

Magistrate

Trial Court Cause No.

02D08-1809-JC-493

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020 Page 2 of 27

STATEMENT OF THE CASE

[1] Appellant-Respondent, J.Y. (Father), appeals the trial court’s adjudication of

his minor child, L.J.Y. (Child) as a Child in Need of Services (CHINS).

1

[2] We affirm. 

ISSUES 

[3] Father presents three issues on appeal, which we restate as the following four 

issues: 

(1) Whether the trial court erred by conducting the factfinding hearing 

outside the statutory timeframe;

(2) Whether the trial court erred by failing to complete the dispositional 

hearing within the timeframe mandated by Indiana statutes;

(3) Whether the trial court abused its discretion by granting the 

Appellee-Petitioner, Department of Child Services’ (DCS) motion to 

have the CHINS petition conform to the evidence; and

(4) Whether the evidence was sufficient to support the trial court’s 

CHINS adjudication.

1

 J.K., Child’s mother (Mother), does not participate in this appeal. 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020 Page 3 of 27

FACTS AND PROCEDURAL HISTORY 

[4] Child was born on May 30, 2002. When Child was about four years old, she 

was removed from Mother’s care due to neglect, and was placed with Father, 

and S.M. (Stepmother) who reside in Fort Wayne, Indiana. 

[5] Sometime in May 2018 or the first day of her summer break, Child was making 

breakfast in the kitchen. She then left the home in order to get syrup from her 

grandmother’s house which was nearby, however, no one was at her 

grandmother’s home, so she returned home. When she got home, Father asked 

her where she had been. A verbal altercation ensued, and Father “grabbed 

[Child] by her hair, swung her around on the floor, and hit her in the head” 

about “seven or eight times.” (Appellant’s App. Vol. II, p. 46, Tr. Vol. II, p. 

71). Child blacked out for a few seconds after being struck in the head. 

[6] On August 22, 2018, DCS received its first report regarding a heated argument 

between Father and Child relating to Child’s boyfriend. On August 28, 2018, 

family case manager Jennifer Medina (FCM Medina), interviewed Father 

regarding the allegation. Father expressed his frustration regarding Child, 

claiming that she was sneaking out of the house at 2:00 a.m. “to be with her 

boyfriend.” (Appellant’s App. Vol. II, p. 26). On the same day, FCM Medina 

interviewed Child. Child stated that Father had “physically abused her in May 

of 2018 by pulling her hair and hitting her in the head.” (Appellant’s App. Vol. 

II, p. 25). Child stated that Father would call her a “cunt and bitch” and he 

talked ill of her Mother. (Appellant’s App. Vol. II, p. 27). Child stated that 

Father’s verbal abuse had her to “the point where she wants to” harm herself. 
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(Appellant’s App. Vol. II, p. 25). During the interview, FCM Medina did not 

observe any marks, bruises, or welts on Child. 

[7] On September 12, 2018, Child missed part of her school day since she had 

issues with her birth control and was supposed to see her gynecologist. 

However, after her appointment, Child was expected to go to school. Father 

drove Child to the appointment. On their way, Child asked Father whether she 

could go with her sister and two nephews to the pumpkin patch. Father then 

yelled at Child and stated that she never wanted to do things with him, and he 

expressed concern that she was not home much. They went to the appointment 

and when the appointment was over, they returned to the car. On their ride to 

Child’s school, Child stated, “why is my life everything you want.” (Tr. Vol. II, 

p. 75). That statement “set [Father] off.” (Tr. Vol. II, p. 75). Out of anger, 

Father took his seatbelt off and “kind of swerved the car and lunged at [Child].” 

(Tr. Vol. II, p. 75). The vehicle that was driving behind drove up beside 

Father’s car and the occupants stated that they were calling the police. When 

the car stopped, Child attempted to get out of the car, however, Father 

threatened to beat Child, so she remained in the car. When the police arrived, 

Father got out of the car, and Child locked the door. The police convinced 

Child to open the door and they later transported her to school. 

[8] On September 19, 2018, Child’s school contacted DCS to report that Child had 

a “bruise on her thigh.” (Appellant’s App. Vol. II, p. 25). Child informed 

FCM Medina that Father had punched her on her right thigh “because she 

[had] asked for help with her homework.” (Appellant’s App. Vol. II, p. 25). 
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FCM Medina observed the “bruise to be [greenish-yellow] in color[,] and was 

large and round.” (Appellant’s App. Vol. II, pp. 25-26). FCM Medina took 

pictures of the bruise in the bathroom. FCM Medina then interviewed Father 

over the phone. Father denied physically abusing Child, but he claimed that he 

had verbally scolded her in front of Stepmother since Child had sought last 

minute help with an eight-page assignment which was due the next day. Father 

added that his children, including Child, knew the “system and [knew] what to 

say to get him in trouble” with DCS. (Appellant’s App. Vol. II, p. 26). When 

FCM Medina requested that Father pick up Child from school due to the 

incident, Father refused. Prior to suspending the phone call, Father blurted, 

“You know what, I don’t even want her back in my home, this is enough, just 

keep her.” (Appellant’s App. Vol. II, p. 26). Another FCM contacted Father to 

confirm that he did not want Child in his home. Father was “extremely irate []

and throughout the call” he “was yelling more than talking.” (Appellant’s App. 

Vol. II, p. 26). When the FCM conveyed that Father’s yelling was needless, 

Father hung up. Since Father refused to pick up Child from school, FCM 

Medina transported Child to the Youth Services Center, and she was 

subsequently placed in foster care. 

[9] On September 21, 2018, the trial court held a preliminary hearing regarding 

allegations of Father’s neglect and physical abuse to Child. Father and 

Stepmother were present for that hearing. DCS presented evidence that it had 

received three reports relating to Father’s physical abuse of Child. First, DCS 

claimed that Child had reported that Father had “grabbed [her] by the hair,” 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020 Page 6 of 27

swung her “around on the floor” and “hit her in the head.” (Tr. Vol. II, p. 7). 

DCS added that on September 12, 2018, Father “struck” Child on her thigh

causing her to have a bruise. (Tr. Vol. II, p. 7). DCS also presented pictures of 

the bruise. DCS further stated that Child had “reported being afraid to go back 

home due to physical . . . abuse in the home” and that she was having 

“ideations [] of self-harm.” (Tr. Vol. II, p. 7). 

[10] The trial court found that probable cause existed, found that Child was a 

CHINS, and it authorized DCS to file a CHINS petition. DCS served Father 

with the CHINS petition in court that day. After Father denied the allegations, 

the trial court ordered Child to remain in foster care and participate in a clinical 

assessment. Father was then directed to refrain from criminal activity, maintain

a clean and stable home, cooperate with all caseworkers, attend all meetings,

and participate in various services. In response to the court ordered services,

Father stated 

Well Your Honor I’ve been involved with DCS for about 20 

years so I doubt that any of the services that they can provide or

suggest[ed] to me are going to help because I’ve probably done 

every single one of their classes and to add a little bit more on top 

of that[,] the majority of those classes have asked me to come 

back and instruct their classes.

(Tr. Vol. II, p. 13). During further discussion with the trial court, Father’s voice 

was “escalating in tone,” and it progressed to “an angry loud tone.” (Tr. Vol. 

II, p. 15). Father’s final words were, “You’ve railroaded my entire life[,] 20 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020 Page 7 of 27

years of my fuckin life man.” (Tr. Vol. II, p. 15). At that point, the trial court 

adjourned the hearing.2

[11] On October 15, 2018, the trial court conducted an additional initial hearing. 

Child, GAL Jennifer Young (GAL Young), Father’s attorney, Stepmother, and 

Stepmother’s counsel were present. Initially, Father was present, but he was

escorted out by security since “he was agitated . . . and being loud.” (Tr. Vol. 

II, p. 17). During the hearing, DCS requested and was granted leave to amend 

its CHINS petition to include Stepmother as a party since she was also Child’s 

caregiver. GAL Young then reported that Child was “doing really well” in 

foster care and “there were no issues or concerns.” (Tr. Vol. II, p. 20). At the 

close of the hearing, the trial court discussed upcoming hearing dates. 

Everyone agreed that an additional initial hearing was necessary and was 

scheduled for November 27, 2018. Also, the trial court scheduled a factfinding 

hearing for January 10, 2019.3 None of the parties, including Father, objected 

or otherwise stated the factfinding hearing was scheduled past the sixty-day 

statutory timeframe.

[12] On November 19, 2018, DCS filed a Second Amended CHINS petition. The 

material facts pertaining to Father’s, Mother’s, and Stepmother’s neglect were 

2 The record shows that on October 12, 2018, DCS amended the CHINS petition and included facts 

pertaining to Mother’s neglect of Child. 

3 According to Indiana Code section 31-34-11-1(a), a factfinding hearing should not be scheduled more than 

sixty days after the CHINS petition has been filed. Indiana Code section 31-34-11-1(b) further provides that 

the trial court may extend the time to complete the factfinding hearing by an additional sixty days if all the 

parties consent to further time. 
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included in that petition. On November 27, 2018, during the hearing, the trial 

court realized that scheduling a factfinding in January 2019 would be outside 

the statutory timeframe mandated under Indiana Code section 31-34-11-1(a). 

Believing that the parties had consented to the scheduling of the factfinding

hearing outside the sixty-day statutory timeframe, the trial court questioned

whether “the parties have waived the [sixty-day] requirement.” (Tr. Vol. II, p. 

30). DCS’s counsel immediately responded by stating, “I believe so.” (Tr. Vol. 

II, p. 30). Despite the absence of such a waiver, Father’s counsel did not object 

to DCS’s response. Following that hearing, the trial court issued an order, 

scheduling the factfinding for January 10, 2019 and January 17, 2019. The 

order noted that the “parties waive[d] the requirement that [f]actfinding be 

completed within sixty days.” (Appellant’s App. Vol. II, p. 65). 

[13] On January 10, 2019, the parties were present at the factfinding hearing, but the 

matter was continued to January 15, 2019. As of the day of that hearing, Child

did not feel safe to go back to live with Father. She felt that if she went back to 

Father’s home things would go from bad to worse. Child stated that since she 

moved out of Father’s home in September 2018, she has never been happier. 

She testified that her “anxiety has lessened,” she was no longer depressed, she 

had gotten a job, and was saving up money to buy herself a car. (Tr. Vol. II, p. 

83). The factfinding hearing was then continued to January 17, 2019 and was 

concluded on the same day. 

[14] While the DCS’s CHINS petition was founded on claims of neglect pursuant to 

Indiana Code section 31-34-1-1, DCS sought to add an allegation of abuse 
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pursuant to Indiana Code section 31-34-1-2 in light of all the evidence presented 

regarding Father’s physical abuse to Child. Thus, at the close of the DCS’s 

case-in-chief, and pursuant to Indiana Trial Rule 15(B), DCS moved to amend 

its petition to conform to the evidence. Over Father’s objection, the trial court 

granted DCS’s request. On April 15, 2019, the trial court issued an Order,

adjudicating Child as a CHINS pursuant to Indiana Code sections 31-34-1-1; 

and -2. An initial dispositional hearing was scheduled for April 29, 2019. 

Father was not present, but his newly appointed attorney was, and she 

requested a continuance claiming that it was in Father’s “best interest.” (Tr. 

Vol. II, p. 180). On June 18, 2019, the trial court held and concluded the 

dispositional hearing. The following day, the trial court issued its dispositional 

order. 

[15] Father now appeals. Additional information will be provided as necessary. 

DISCUSSION AND DECISION 

I. Timeliness of the Factfinding Hearing

[16] Father contends that the trial court erred when it held the factfinding hearing

outside the mandated statutory timeframe. Indiana Code section 31-34-11-1, 

provides, in relevant part that:

(a) Except as provided in subsection (b), unless the allegations of 

a petition have been admitted, the juvenile court shall complete a 

factfinding hearing not more than sixty (60) days after a petition 

alleging that a child is a child in need of services is filed in 

accordance with [I.C. §] 31-34-9.
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(b) The juvenile court may extend the time to complete a 

factfinding hearing, as described in subsection (a), for an 

additional sixty (60) days if all parties in the action consent to the 

additional time.

* * * *

(d) If the factfinding hearing is not held within the time set forth 

in subsection (a) or (b), upon a motion with the court, the court shall 

dismiss the case without prejudice.

(Emphasis added). In re J.S., 133 N.E.3d 707, 712-13 (Ind. Ct. App. 2019), we 

held that 

the General Assembly clearly intends for the timeframe set forth 

in Indiana Code section 31-34-11-1 to be a certain deadline. 

Further, while subsection (a) provides that the parties may waive 

the initial 60-day deadline by agreeing to a continuance, 

subsection (b) does not include any such provision. This lack of 

allowance for an additional extension of time indicates that the 

General Assembly intends to require that a factfinding hearing 

must be completed within 120 days of the filing of a CHINS 

petition regardless of any act or agreements of the parties. To 

allow the parties to agree to dates beyond the maximum 120-day 

limit would thwart the legislative purpose of timely rehabilitation 

and reunification of families that are subject to CHINS 

proceedings.

[17] In the present case, on September 21, 2018, DCS filed a CHINS petition.

During an initial hearing on October 15, 2018, twenty-four days after that filing,

Father was initially present, but he had to be removed from the court room due 

to his disruptive behavior. Father’s counsel, however, was present during the 
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hearing. At the close of the hearing, a discussion ensued as to available hearing

dates. All parties agreed that an additional initial hearing was needed, and it 

was scheduled for November 27, 2018. The parties also agreed to a factfinding 

hearing to be completed on January 10, 2019, which was 111 days after DCS 

filed its CHINS petition. Father’s counsel did not object to the fact that the 

CHINS factfinding hearing was being scheduled beyond the sixty-day statutory 

timeframe or argue that the parties had not consented to an additional sixty 

days. See I.C.§§ 31-34-11-1(a), (b).

[18] At the additional initial hearing on November 27, 2018, the trial court reiterated 

the scheduling of the factfinding hearing on January 10, 2019. The trial court 

noted that more than sixty days had lapsed since the filing of the CHINS 

petition. The trial court then assumed that “the parties have waived the [sixtyday] requirement.” (Tr. Vol. II, p. 30). DCS’s counsel responded that he 

believed the parties had agreed to such a waiver. While the record contains no 

such waiver, Father’s counsel did not raise any objection. Following that 

hearing, the trial court issued an order scheduling the factfinding to be held on

two days—January 10, 2019 and January 17, 2019. In the order, the trial court 

restated that the parties had “waive[d] the requirement that [f]actfinding be 

completed within sixty days.” (Appellant’s App. Vol. II, p. 65). On January 3, 

2019, a case management hearing was held, and Father did not argue that the 

January 10, and 17, 2018 factfinding hearings were outside the hearing 

requirement set forth in Indiana Code section 31-34-11-1(a), or that the parties 

did not consent to an additional sixty days to complete the factfinding hearing 
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pursuant to Indiana Code section 31-34-11-1(b). On January 10, 2019, the 

parties were present at the factfinding hearing, but the matter was continued to

January 15, 2019. The factfinding hearing was ultimately conducted on two 

days—January 15, and 17, 2019, which was 116 days after the CHINS petition 

had been filed. At no point did Father object to the untimely nature of the 

factfinding hearing. 

[19] In re J.S., 133 N.E.3d at 713 we concluded, in part, that the CHINS statutory 

scheme provides mandatory deadlines and includes enforcement mechanisms. 

“This is not to say that the enforcement mechanisms are self-executing and a 

party can stand idly by until an adverse determination has been made. A party 

must preserve the right of expediency by filing a written motion to dismiss 

before the merits of a petition are litigated.” Id. 

[20] Father had some cognizable duty to challenge the untimely nature of the 

factfinding hearing during the initial hearings, which he failed to do. 

Additionally, not only did Father fail to object to the placing of the factfinding 

hearing outside the statutory timeframe, he did not file a motion with the court

to dismiss the CHINS petition as Indiana Code section 31-34-11-1(d) mandates, 

thus, he invited the error. See Prime Mortgage USA, Inc. v. Nichols, 885 N.E.2d 

628, 657 (Ind. Ct. App. 2008). “The doctrine of invited error is grounded in 

estoppel and precludes a party from taking advantage of an error that he or she 

commits, invites, or which is the natural consequence of his or her own neglect 

or misconduct.” Id. (citing Balicki v. Balicki, 837 N.E.2d. 532, 541 (Ind. Ct.

App. 2005), trans. denied).
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[21] Father then argues that even if he waived compliance with the timeframes, the 

trial court committed fundamental error by not sua sponte dismissing the CHINS 

case once the sixty-day timeframe was exceeded. The fundamental error 

doctrine is a narrow exception to the waiver doctrine and applies to an “error 

that was so egregious and abhorrent to fundamental due process that the trial 

judge should or should not have acted, irrespective of the parties’ failure to 

object or otherwise preserve the error for appeal.” In re G.P., 4 N.E.3d 1158, 

1167 n. 8 (Ind. 2014). For an appellate court to overturn a trial court ruling 

based on fundamental error, the error must have been “a clearly blatant 

violation of basic and elementary principles, and the harm or potential for harm 

therefrom must be substantial and appear clearly and prospectively.” S.M. v. 

Elkhart Cnty. Office of Family & Children, 706 N.E.2d 596, 600 (Ind. Ct. App.

1999) (citation omitted).

[22] Even if the trial court’s decision to conduct the factfinding hearing outside the 

statutory timeframe amounted to error, the harm for such error was not 

substantial enough to rise to the level of fundamental error. The record reveals

that at an initial hearing in November 2018, the trial court noted that the 

scheduling of the factfinding hearing in January 2019 would be outside the 

timeframe set by Indiana statutes. DCS indicated that there was a waiver in 

place, and the trial court issued an order stating that the parties had waived the 

holding of the factfinding hearing beyond the sixty-day period. Moreover, 

Indiana Code section 31-34-11-1(d), spells out the enforcement mechanism of 

an aggrieved party. That section requires the trial court to dismiss the CHINS 
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action if a motion is filed with the court. Father failed to file a motion to dismiss 

and the trial court acted on Father’s wavier. Under such circumstances, Father 

cannot complain that the factfinding hearings were held outside the statutory 

framework. Nor has Father identified any actual prejudice to his ability to 

present his case as a result of the delay. Thus, Father has not established that 

fundamental error occurred, and we hold that the trial court’s failure to 

complete the factfinding hearing on DCS’s CHINS petition within the statutory 

timeframe did not constitute error. 

II. Timeliness of the Dispositional Hearing 

[23] Father additionally contends that the trial court erred when it held the 

dispositional hearing more than thirty days after the CHINS finding. In 

response, DCS claims that Father waived his right to challenge the setting of 

that dispositional hearing outside the statutory timeframe.

[24] Indiana Code section 31-34-19-1(a) governs dispositional hearings and 

provides, in relevant part that “The juvenile court shall complete a dispositional 

hearing not more than thirty (30) days after the date the court finds that a child 

is a child in need of services . . .” Indiana Code section 31-34-19-1(b) continues

to state that “if the dispositional hearing is not completed in the time set forth in 

subsection (a), upon filing of a motion with the court, the court shall dismiss the 

case without prejudice.” After the trial court entered its Order on the 

factfinding hearing on April 15, 2019, it only had thirty days to conduct a 

dispositional hearing. 
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[25] The record shows that an initial dispositional hearing was scheduled for April 

29, 2019. Father was not present, but Father’s newly appointed counsel was,

and she requested a continuance since she had not had a chance to review the 

case or consult with Father. In fact, Father’s counsel stated that it was in 

Father’s “best interest” that the dispositional hearing be continued. (Tr. Vol. II, 

p. 180). Based on Father’s counsel’s argument, the trial court questioned the 

parties as to whether they were waiving the “statutory time frames” for the 

dispositional hearing. (Tr. Vol. II, p. 180). All parties, including Father, did 

not object to the rescheduling of the dispositional hearing outside the thirty-day 

timeframe. 

[26] We agree with DCS that Father waived his right to challenge the untimely 

completion of the dispositional hearing. See Plank v. Cmty. Hospitals of Ind., Inc., 

981 N.E.2d 49, 53 (Ind. 2013) (our supreme court held that “waiver” connotes 

an “intentional relinquishment or abandonment of a known right.”) Further, 

Indiana Code section 31-34-19-1(b) requires that if a dispositional hearing is not 

held within thirty days of the CHINS order, “upon a motion,” the matter shall 

be dismissed without prejudice. Father failed to file a motion to dismiss the 

CHINS case. Thus, Father cannot be afforded relief in this appeal. 

III. Amendment of the CHINS Petition 

[27] Next, we address Father’s argument that the trial court abused its discretion 

when it permitted DCS to amend its CHINS petition during the factfinding 

hearing. 
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[28] We note that DCS’s Second Amended CHINS petition only alleged claims of 

neglect against Father pursuant to Indiana Code section 31-34-1-1( which 

requires proof that Child’s physical or mental health is seriously impaired or 

endangered as a result of the inability, refusal, or neglect of the parent, 

guardian, or custodian.) Prior to resting its case, DCS sought to amend its 

CHINS petition under Trial Rule 15(B) so that the petition could “conform to 

the evidence.” (Tr. Vol. II, p. 144). With the amendment, DCS sought to 

include Indiana Code section 31-34-1-2, which requires proof that Child’s

physical or mental health is seriously endangered due to injury by the act or 

omission of Child’s parent, guardian, or custodian. Over Father’s objection, 

the trial court permitted the last-minute amendment. On appeal, Father argues 

that throughout the factfinding hearing, DCS focused on contentions that he 

neglected Child. Thus, Father contends that DCS’s late amendment did not 

afford him adequate notice that assertions pertaining to physical abuse to Child

would be presented, and he argues that he was prevented from preparing an 

adequate defense. 

[29] Amendments to pleadings are to be liberally allowed. MAPCO Coal, Inc. v. 

Godwin, 786 N.E.2d 769, 777 (Ind. Ct. App. 2003). The trial court retains 

broad discretion in granting or denying amendments to pleadings, and we will 

reverse on appeal only when it abuses that discretion. Id. “An abuse of 

discretion may occur if the trial court’s decision is clearly against the logic and 

effect of the facts and circumstances before the court, or if the court has 
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misinterpreted the law.” Fleming v. Int’l Pizza Supply Corp., 707 N.E.2d 1033, 

1036 (Ind. Ct. App. 1999), trans. denied. 

[30] Trial Rule 15(B) provides as follows

When issues not raised by the pleadings are tried by express or 

implied consent of the parties, they shall be treated in all respects 

as if they had been raised in the pleadings. Such amendment of 

the pleadings as may be necessary to cause them to conform to 

the evidence and to raise these issues may be made upon motion 

of any party at any time, even after judgment, but failure so to 

amend does not affect the result of the trial of these issues. If 

evidence is objected to at the trial on the ground that it is not 

within the issues made by the pleadings, the court may allow the 

pleadings to be amended and shall do so freely when the 

presentation of the merits of the action will be subserved thereby 

and the objecting party fails to satisfy the court that the 

admission of such evidence would prejudice him in maintaining 

his action or defense upon the merits. The court may grant a 

continuance to enable the objecting party to meet such evidence.

[31] Pursuant to T.R. 15(B), issues not set out in the pleadings may be tried by the 

express or implied consent of the parties. Baker v. Midland-Ross Corp., 508 

N.E.2d 32, 35 (Ind. Ct. App. 1987), trans. denied. The function of the issues, 

whether formed by the pleadings, pre-trial orders, or contentions of the parties, 

is to provide a guide for the parties and the court as they proceed through trial. 

Id. Either party may demand strict adherence to the issues raised before trial. 

Id. If the trial court allows introduction of an issue not raised before trial, an 

objecting party may seek a reasonable continuance in order to prepare to litigate 

the new issue. Id. However, where the trial ends without objection to the new 
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issue, the evidence presented at trial controls. Id. Consequently, neither 

pleadings, pre-trial orders, nor theories proposed by the parties should frustrate 

the trier of fact from finding the facts that a preponderance of the evidence 

permits. Id.

[32] Because fairness compels certain restraints, there are limits upon the principle of 

amending pleadings through implied consent. Id. at 36. For example, a party is 

entitled to some form of notice that an issue that was not pleaded is before the 

court. Id. Notice can be overt, as where the unpleaded issue is expressly raised 

prior to or sometime during the trial but before the close of the evidence, or 

implied, as where the evidence presented at trial is such that a reasonably 

competent attorney would have recognized that the unpleaded issue was being 

litigated. Id. 

[33] We begin our analysis by noting that the Second Amended CHINS petition 

focused on claims that Child was a CHINS due to neglect pursuant to Indiana 

Code section 31-34-1-1, and one of the material allegations cited indicated that 

Child had succumbed to physical abuse in Father’s care. Specifically, DCS 

alleged that “On or about September 12, 2018, [Child] became injured while 

she was in [Father’s] care, custody, and control.” (Appellant’s App. Vol. II, p. 

60). That allegation put Father on notice that DCS intended to present 

evidence that Child had been physically harmed in his care and that it would be 

an issue at the factfinding hearing.
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[34] Additionally, at the initial hearing on September 21, 2018, DCS presented 

evidence that it had received three reports relating to Father’s physical abuse of

Child. DCS claimed that Child had reported that Father had “grabbed [her] by 

the hair,” swung her “around on the floor” and “hit her in the head.” (Tr. Vol. 

II, p. 7). DCS added that on September 12, 2018, Father “struck” Child on her

thigh causing her to have a bruise. (Tr. Vol. II, p. 7). DCS also presented 

pictures of Child’s bruise. DCS further stated that Child had “reported being 

afraid to go back home due to physical . . . abuse in the home” and that she was 

having “ideations [] of self-harm.” (Tr. Vol. II, p. 7). 

[35] Moreover, the transcript reveals a plethora of evidence elicited without 

objection at the factfinding hearing that Father had notice that evidence relating 

to physical abuse to Child would be presented at the factfinding hearing. Child 

explicitly testified regarding the incident where Father grabbed her hair, 

dragged her on the floor, and “hit her head about seven or eight times.” (Tr. 

Vol. II, p. 71). Child claimed that Father’s last blow in the head was “really 

hard” and she “kind of blacked out a little bit.” (Tr. Vol. II, p. 71). Child also 

recapped the incident where Father struck her on her thigh on September 12, 

2018. Child testified that Father was “trying to hit me with the belt and kind of 

open fisted me and hit me in my thigh.” (Tr. Vol. II, p. 85). 

[36] The purpose behind Trial Rule 15(B) is to provide the parties with some 

flexibility in litigating a case, and to promote justice by permitting evidence 

brought in at trial to determine the liability of the parties. In re V.C., 867 N.E.2d 

167, 169 (Ind. Ct. App. 2007). In sum, evidence was admitted, without 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020 Page 20 of 27

objection, showing that Child had been injured in Father’s care. Moreover, 

even though the CHINS petition did not cite the appropriate statute relating to 

abuse, one of the allegations in the Second Amended CHINS petition put 

Father on notice that evidence involving abuse would be presented by DCS at 

the factfinding hearing. Thus, Father cannot show that the trial court abused its 

discretion by permitting DCS to amend the CHINS petition so that it could 

conform to the evidence. Accordingly, we hold that there was no abuse of 

discretion. 

IV. CHINS Adjudication. 

[37] Lastly, Father contends that the evidence is insufficient to support the trial 

court’s CHINS adjudication. DCS bears the burden of proving that a child is a 

CHINS by a preponderance of the evidence. In re Des.B., 2 N.E.3d 828, 835-36 

(Ind. Ct. App. 2014). In reviewing a CHINS determination, our court does not 

reweigh evidence or assess witness credibility. In re K.D., 962 N.E.2d 1249, 

1253 (Ind. 2012). We consider only the evidence in favor of the trial court’s 

judgment, along with any reasonable inferences derived therefrom. Id.

[38] In addition, the trial court entered limited findings of fact and conclusions 

thereon sua sponte; thus, our review is governed by Indiana Trial Rule 52(A). 

The CHINS statute does not stipulate that formal findings must accompany a 

CHINS determination. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). 

Accordingly, for the issues covered by the court’s findings, we apply our twotiered standard of review, first considering whether the evidence supports the 

factual findings and then whether those findings support the trial court’s 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020 Page 21 of 27

judgment. Id. We will not set aside the findings or judgment unless they are 

clearly erroneous. In re Des.B., 2 N.E.3d at 836. Factual findings are clearly 

erroneous where there are no facts in the record to support them either directly 

or by inference. Id. “A judgment is clearly erroneous if it relies on an incorrect 

legal standard.” Id. We accord substantial deference to the trial court’s 

findings of fact but not to its conclusions of law. Id. Any issues not covered by 

the trial court’s findings are reviewed under the general judgment standard, 

“under which a judgment will be affirmed if it can be sustained on any legal 

theory supported by the evidence.” In re S.D., 2 N.E.3d at 1287 (internal 

quotation marks omitted).

[39] Here, the trial court concluded that Child is a CHINS “as defined by I.C.31-34-

1-1 and 31-34-1-2.” (Appellant’s App. Vol. II, p. 97). To meet its burden of 

establishing CHINS status pursuant to Indiana Code Section 31-34-1-1, DCS 

must prove that Child is under eighteen and that

(1) Child’s physical or mental condition is seriously impaired or 

seriously endangered as a result of the inability, refusal, or 

neglect of Child’s parent, guardian, or custodian to supply Child

with necessary food, clothing, shelter, medical care, education, or 

supervision; and

(2) Child needs care, treatment, or rehabilitation that:

(A) Child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive 

intervention of the court.
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[40] To meet its burden of proving CHINS status pursuant to Indiana Code Section 

31-34-1-2, DCS must prove that Child is under eighteen and that

(1) Child’s physical or mental health is seriously endangered due 

to injury by the act or omission of Child's parent, guardian, or 

custodian; and

(2) Child needs care, treatment, or rehabilitation that:

(A) Child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive 

intervention of the court.

(b) Evidence that the illegal manufacture of a drug or controlled 

substance is occurring on property where a child resides creates a 

rebuttable presumption that Child’s physical or mental health is 

seriously endangered.

[41] Father specifically challenges the following findings:

D. [Child] and [Father] do not have a good relationship and the 

two get into arguments and yell at one another. From the 

testimony of [Child], the [c]ourt finds that Child has a difficult 

time expressing her feelings to [] [F]ather. She tries not to anger 

[] [F]ather and is scared when he becomes angry. [Father] has 

put his hands on [Child] when he has become angry with her.

E. In May of 2018, [Child] was making breakfast in the kitchen. 

She then left the home in order to get syrup from her 

grandmother’s house, however, no one was at her grandmother’s 

home when she got there, so she returned home. When she 

returned to her home, [Father] asked her where she had been and 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020 Page 23 of 27

hit her in the head approximately 7-8 times and pulled her hair. 

[C]hild believes that she may have blacked out for a few seconds 

after being struck in the head. Her [stepmother], brother and the 

step-mother’s grandmother were at home at the time that this 

incident occurred, however, no-one acted to protect her.

Between May of 2018 and August 22, 2018, [Child] and [] 

[F]ather had disagreements about [Child] going to see her 

boyfriend. [Father] does not like [Child]’s boyfriend and the two 

would get into arguments about her boyfriend and other issues 

about every other week. During their arguments, [Father] would 

call Child names and/or belittle her including calling [Child] her 

mother’s name and making disparaging remarks about [Child’s]

mother. This behavior hurt [C]hild greatly and was emotionally 

harmful to her.

On September 12, 2018, [C]hild did not go to school because she 

had a stomach ache. She also had a doctor’s appointment that 

day and [Father] transported her to the appointment. On the 

way to the appointment, [C]hild asked [] [F]ather if she could go 

on a hayride with her sister and two (2) nephews at the pumpkin 

patch. [] Father then yelled at her and said that she never wanted 

to do things with him and expressed concern that she was not 

home much. They went to the appointment and when the 

appointment was over, they returned to the car and were 

returning home when the argument resumed. As they were 

driving home, [] [F]ather lunged at [C]hild. Passers-by witnessed 

the events and called the police. When the car stopped, [C]hild 

attempted to get out of the car, however, [] [F]ather threatened to 

beat her, so she remained in the car. The police arrived and 

interviewed her and then took her to school. After she arrived at 

school that day, she went into the girl’s restroom because she was 

upset about what had happened in the car with [] [F]ather. She 

then went into Mrs. Price’s office and informed her about what 

had happened between herself and [] [F]ather that day. A school 

nurse took photographs of a bruise on her thigh that she 
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1652 | January 30, 2020 Page 24 of 27

sustained from an argument that occurred with [] Father one (1) 

week prior. Ultimately, the Dean of Students called the police 

officer back and also called the DCS who came to the school and 

interviewed [C]hild. She was then taken to Youth Services 

Center by the Department of Child Services case manager.

* * * *

P. [Child] is sixteen (16) years old. She and [] [Father], have a 

dysfunctional relationship which has resulted in physical violence 

being perpetrated upon [Child] by [] [Father]. [] [F]ather has also 

belittled [] [C]hild and made disparaging remarks to her which 

has been harmful for her mental and emotional well-being.

[Father] lacks appropriate parenting skills and has difficulty 

managing his anger. As a result, the [C]hild does not feel safe 

around him and does not wish to return to his home. 

Accordingly, the [c]ourt finds that [] [C]hild’s physical or mental 

condition is seriously endangered or seriously impaired as a 

result of [] [Father]’s inability to provide her with necessary food, 

clothing, shelter, medical care, education, or supervision; 

[] [Child], and [] [F]ather are in need of counseling and other 

services to assist them in repairing their damaged relationship 

and to teach the two how to interact appropriately with one 

another. Additionally, [Father] is in need of services to assist 

him in dealing with his anger and hostility towards his daughter 

and others and to assist him in learning how to appropriately 

parent his child. He has been resistant to participating in services 

in this case and had been resistant to services in the prior CHINS 

case involving his son, [S.Y.]. He has demonstrated that he will 

not willingly participate in services designed to assist him in 

providing the [C]hild with the necessary food, clothing, shelter, 

medical care, education or supervision without the coercive 

intervention of the [c]ourt.
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Q. In September of 2018, [] [C]hild received physical injuries in 

the form of a bruised thigh as a result of [Father]’s use of physical 

violence and/or inappropriate discipline. In May of 2018, 

[Father] struck Child in the head 7 or 8 times because he was 

angry with her and/or as a means of discipline resulting in Child

“blacking out” for a few seconds. There are significant concerns 

about [Father]’s history and propensity for engaging in physical 

violence, his inability to control his anger and his parenting skills. 

The [c]ourt concludes, by a preponderance of the evidence, that 

the [C]hild’s physical or mental health is seriously endangered 

due to injury by the act or omission of Child’s parent, guardian, 

or custodian.

(Appellant’s App. Vol. II, pp. 91-97). 

[42] DCS maintains that the evidence supports the findings, and that the conclusions 

support the judgment, and Father’s challenges to the findings and conclusions 

are a request to reweigh the evidence. We agree. For instance, Father claims

that a “bruise which occurred approximately September 5, 2019, is not likely to 

be visible more than two weeks later.” (Appellant’s Br. p. 34). At the 

factfinding hearing, Child unequivocally testified that Father struck her on her 

thigh on September 12, 2018, causing her to bruise. When FCM Medina 

questioned Child on September 19, 2018, seven days after the alleged incident, 

FCM Medina observed the “bruise to be [greenish-yellow] in color[,] and was 

large and round.” (Appellant’s App. Vol. II, pp. 25-26). Pictures relating to 

Child’s bruise were admitted into evidence. Thus, Father’s argument is 

contrary to the evidence and is a request to reweigh the evidence. 
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[43] Father then downplays the emotional impact his name calling had on Child. 

During her initial contact with FCM Medina, Child stated that Father would 

call her a “cunt and bitch.” (Appellant’s App. Vol. II, p. 27). At the 

factfinding hearing, Child testified that Mother was a drug addict and when 

Father compared her to Mother as a way to demean her, it “broke [her] heart.” 

(Tr. Vol. II, p. 73). Child additionally testified that whenever she argued with 

Father, Father would call her names. Father’s favorite name to call Child was

“ignorant.” (Tr. Vol. II, p. 73). Child testified that Father’s name calling was 

hurtful. Further, Child testified that since she moved out of Father’s and 

Stepmother’s home in September 2018, she has never been happier. She stated

that her “anxiety has lessened,” she was no longer depressed, she had gotten a 

job, and was saving up money to buy herself a car. (Tr. Vol. II, p. 83). Contrary 

to Father’s claim, his disparaging remarks to Child were harmful to her mental 

and emotional well-being.

[44] The CHINS statute, however, does not require that a court wait until a tragedy 

occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). 

Rather, a child is a CHINS when he or she is endangered by parental action or 

inaction. Id. The purpose of a CHINS adjudication is not to punish the parents, 

but to protect Child. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. 

denied. Father’s acts and omissions not only caused physical injury to Child, 

they were also harmful to Child’s mental and emotional well-being, and 

Father’s acts and omissions placed Child in a situation where DCS had to 

intervene. Based on the foregoing, we conclude that the trial court’s 
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determination that Child was a CHINS under Indiana Code sections 31-34-1-1 

and -2, was supported by sufficient evidence. 

CONCLUSION 

[45] Based on the foregoing, we conclude that the trial court’s failure to complete 

the factfinding hearing on DCS’s CHINS petition within the statutory 

timeframe did not constitute error; Father waived his right to challenge the 

untimely completion of the dispositional hearing; the trial court did not abuse 

its discretion by permitting DCS to amend the CHINS petition so that it could 

conform to the evidence; and the evidence was sufficient to support the trial 

court’s CHINS adjudication. 

[46] Affirmed.

[47] Baker, J. and Brown, J. concur