Court of Appeals of Indiana | Memorandum Decision 19A-JC-1243 | January 28, 2020 Page 1 of 17

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

Danielle Sheff

Sheff Law Office

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of J.C. and J.M. 

(Children Alleged to be in Need 

of Services) and M.M. (Mother);

M.M. (Mother),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

January 28, 2020

Court of Appeals Case No.

19A-JC-1243

Appeal from the Marion Superior 

Court

The Honorable Marilyn Moores, 

Judge

The Honorable Gael Deppart, 

Magistrate

Trial Court Cause No.

49D09-1811-JC-2881

49D09-1811-JC-2883

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-1243 | January 28, 2020 Page 2 of 17

[1] M.M. (“Mother”) appeals an order that adjudicated J.C. and J.M. as Children 

in Need of Services (“CHINS”) and that denied the CHINS petition as to N.H. 

because custody of N.H. had been transferred to N.H.’s father, M.H. Mother

presents multiple issues for our consideration which we restate as:

1. Whether the trial court violated Mother’s right to due process 

when: 

A. the court consolidated the CHINS proceedings and the 

custody proceedings regarding N.H., because that 

consolidation prohibited Mother from being able to timely 

appeal the trial court’s decision regarding N.H.’s custody, 

and

B. the court did not allow the attorney appointed to 

represent Mother in the CHINS proceedings to also 

represent Mother in the contested custody proceedings 

involving N.H.;

2. Whether the trial court abused its discretion when it allowed a 

witness to testify in violation of a witness-separation order; and

3. Whether the trial court’s findings support its conclusion that 

J.C. and J.M. are CHINS.

We affirm.

Facts and Procedural History
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[2] Mother is the biological mother of J.C., born April 15, 2005;1 N.H., born 

August 12, 2009;2 and J.M., born February 25, 20143 (collectively, “Children”). 

On November 27, 2018, Mother drove with Children for twenty-four hours 

from Florida to Indiana to seek medical attention for J.M. When she arrived at 

St. Francis Hospital with N.H. and J.M.,4 Mother asked emergency personnel 

to examine J.M. because J.M. had allegedly sustained a skull fracture in a 

recent car accident and, as Mother explained at the hearing, she was “trying to 

explain that the veins popping out of her head, like she had more veins, visible 

veins. And I was actually scared because of the high altitudes in the 

mountains[.]” (Tr. Vol. II at 57-8.) Hospital personnel reported Mother told 

them she thought that her “children’s brains had been hacked.” (Id. at 78.) 

Hospital personnel placed Mother is a secured room in the hospital’s mental 

health ward, would not allow her to leave, and called the Department of Child 

Services (“DCS”) because J.M. and N.H. did not have care.

[3] Family Case Manager Chantel White (“FCM White”) attempted to speak with 

Mother, who stated FCM White would “need to bring the President or talk to 

the FBI.” (Id. at 113.) Mother asked FCM White if she “saw [C]hildren’s 

brains coming out of their heads.” (Id.) FCM White reported, “[Mother] 

1 J.C.’s father is deceased.

2 N.H.’s father, M.H., does not participate in this appeal.

3 J.M.’s father is incarcerated and does not participate in this appeal.

4 Mother reported she left J.C. with his paternal aunt in Indianapolis, at J.C.’s request, before going to the 

hospital.
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appeared to be speaking very fast, there . . . she seemed to be crying, she 

seemed very disheveled.” (Id. at 114.) Mother was detained on an involuntary 

psychiatric hold for ten days at St. Francis, and then she was transferred to 

Valle Vista, a psychiatric facility, for further treatment. DCS filed its petitions

to adjudicate Children as CHINS on November 29, 2018. Children did not 

have care, so DCS placed them with relatives – J.C. went to live with his 

paternal aunt, J.G.; N.H. went to live with her father, M.H.; and J.M. went to 

live with her maternal uncle.

[4] On December 18, 2018, the trial court held an initial hearing at which Mother 

and M.H. appeared. M.H. had indicated prior to the initial hearing that he 

intended to seek a custody modification, so that he would have physical 

custody of N.H. The trial court told the parties that the “Family Court Project 

has approved or bundled, consolidated the JC [CHINS] cause along with the JP 

[custody of N.H.] case.” (Tr. Vol. II at 4.) M.H.’s counsel informed the court, 

“DCS is otherwise willing to dismiss [the CHINS petition] as to [N.H.] if 

placement and custody were to be with [M.H.].” (Id. at 7.) 

[5] Mother did not want M.H. to have physical custody of N.H. Regarding her 

representation in the custody matter, the trial court and Mother discussed the 

matter on the same day:

[Mother]: I have a question. So this is . . . this is going to be 

for a separate case in the Marion County Courts as far as 

custody, is that what we’re saying, is that what that’s going to be, 

because for something like that I would definitely need to hire 

my own attorney, I would assume.
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[Court]: That’s up . . . that’s up to you whether you hire an 

attorney for it or not. I know Ms. Benson [Mother’s appointed 

counsel] or any attorney from [the] public defender agency is 

unable to represent a parent in a custody matter that’s here in this 

Court or even downtown, as far as I know. But, all that to say, 

Mr. Olson [M.H.’s private counsel] has been requested . . . has 

requested that we set this petition for modification of custody for 

a parties [sic] pre-trial in about 30-days. That would give you 

enough time in terms of contacting an attorney and also if you do 

not hire an attorney, to talk to Mr. Olson in terms of what you 

and he may be thinking about. . . .

(Id. at 9.) The trial court then set a mediation for the parties regarding the 

custody for February 3, 2019, and a bifurcated hearing on February 26, 2019, to 

address the CHINS petitions and N.H.’s custody.

[6] On February 26, 2019, Mother requested a continuance of the custody matter 

because she had traveled to Florida for work, had returned to Indiana on the 

Friday before the hearing, and had been unable to hire private counsel because 

of a lack of funds. The trial court denied the continuance and accepted 

evidence regarding the CHINS petitions. At the end of the CHINS hearing, the 

trial court indicated it would hold the change of custody hearing, during which 

Mother would proceed pro se. 

[7] On April 2, 2019, the trial court adjudicated J.C. and J.M. as CHINS. In the 

same order, the court indicated N.H. was not adjudicated a CHINS because 

“[M.H.] is a fit and willing parent in whose care [N.H.] has been placed, by 

DCS and subsequently by court order, since on or about 11/28/18, and in 

whose care [N.H.] is thriving.” (App. Vol. II at 146.) On April 30, 2019, the 
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trial court entered its dispositional orders as to Mother and ordered her to 

participate in services in the CHINS cases for J.C. and J.M.

Discussion and Decision

1. Due Process

[8] Due process is essentially “the opportunity to be heard at a meaningful time 

and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). A 

due process analysis in a CHINS adjudication turns on the balancing of three 

factors: “(1) the private interests affected by the proceeding; (2) the risk of error 

created by the States chosen procedure; and (3) the countervailing 

governmental interest supporting use of the challenged procedure.” In re K.D., 

962 N.E.2d 1249, 1257 (Ind. 2012). Mother argues the trial court denied her 

due process when it did not permit the attorney court-appointed for the CHINS 

proceedings to also represent Mother in the custody proceedings regarding 

N.H. Mother also argues her due process rights were violated when she 

allegedly was unable to appeal the modification of N.H.’s custody to her father, 

M.H.

A. Appeal of Custody Modification Decision

[9] Mother argues her due process rights were violated because the consolidation of 

the proceedings “forclos[ed] appellate review of the decision to modify custody 

by finding that NH was not a CHINS and proceeding to the Dispositional 

Hearing and Decree only as to JC and JM.” (Br. of Appellant at 44) (errors in 
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original). Mother has not indicated that she attempted to file an appeal of the 

custody modification decision, nor has she argued on appeal that legal 

precedent prevented her from doing so. As she has not made a cogent 

argument on this issue, it is waived. See Martin v. Hunt, 130 N.E.3d 135, 137 

(Ind. Ct. App. 2019) (failure to make a cogent argument, without citation to 

legal precedent, results in waiver of the issue for appellate review).

B. Appointed Attorney for Custody Modification

[10] Mother also argues

MH hired private counsel who filed for Modification of Custody 

in the paternity action requiring that the paternity-custody matter 

be joined in the CHINS court which was vested with exclusive 

jurisdiction of the custody issues. Instead of allowing appointed 

counsel in the CHINS matter to represent MM on [sic] the 

custody matter as to NH, the Juvenile Court misconstrued the 

core nature of the intertwined CHINS and custody proceedings 

to bifurcate the proceedings, require MM to hire private counsel, 

and then hold a hearing where appointed counsel was barred 

while MM attempted to represent herself at a hearing whereat 

MH was represented by private counsel with regard to NH’s 

custody.

(Br. of Appellant at 42.) Mother has not cited any precedent to support her 

argument that the trial court should have appointed counsel to represent her 

during the custody modification hearing regarding N.H., and thus the issue is 

waived. See Martin, 130 N.E.3d at 137 (failure to make a cogent argument 

results in waiver of the issue for appellate review).
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[11] Additionally, even had Mother cited precedent to support her argument, she 

failed to provide a transcript of the hearing for which she claims the court 

should have given her counsel. This failure to provide the record renders us 

incapable of reviewing this issue. See Williams v. State, 690 N.E.2d 162, 176 

(Ind. 1997) (it is the appellant’s responsibility to “provide a record which 

reflects the error alleged”). 

[12] Finally, even if the trial court erred when it did not appoint counsel to represent 

Mother during the proceedings to modify N.H.’s custody to M.H., it is unlikely 

the presence of counsel could have changed the trial court’s ruling in the 

custody proceedings. The record indicates N.H. had been living with her 

biological father for at least four months and she was thriving in his care. 

Furthermore, if custody of N.H. were not modified to her father, then she 

would remain in Mother’s custody, from which she would immediately be 

removed and placed in foster care pursuant to the CHINS proceedings. Given 

these facts and our “strong presumption that the child’s best interests are 

ordinarily served by placement in the custody of a natural parent[,]” In re 

Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002), it is unlikely Mother 

could demonstrate more than harmless error. See Indiana Appellate Rule 66(A)

(Explaining no trial court error “is ground for granting relief or reversal on 

appeal where its probable impact, in light of all the evidence in the case, is 

sufficiently minor so as not to affect the substantial rights of the parties.”).
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2. Separation of Witnesses

[13] “The purpose of a separation of witnesses order is to prevent witnesses from 

gaining knowledge from testimony of other witnesses and adjusting their 

testimony accordingly.” Childs v. State, 761 N.E.2d 892, 895 (Ind. Ct. App. 

2002). Once the trial court grants a party’s request for separation of witnesses, 

any violation of that order is left to the sound discretion of the trial court, and 

we will not disturb the trial court’s decision unless there exists an abuse of that 

discretion. Id. at 894. An abuse of discretion occurs when “the trial court’s 

decision is clearly against the logic and effect of the facts and circumstances 

before the court, or where the trial court has misinterpreted the law.” Id.

[14] During the CHINS fact-finding hearing, Mother asked the trial court to order a 

separation of witnesses. Mother noted that N.H.’s paternal grandmother and 

J.C.’s paternal aunt, J.G., were in the courtroom and would be testifying at 

some point. The trial court then stated, “[N.H.’s paternal grandmother], you’ll 

need to step outside, please.” (Tr. Vol. II at 26.) It is unclear from the record 

whether paternal aunt also left the courtroom, but later in the proceedings, 

during M.H.’s testimony, Mother notified the court about J.G.’s presence:

[Mother]: And Judge, I’m . . . I’m sorry to interrupt but I just 

realized that there’s a proposed DCS witness sitting in here and I 

had asked for a separation of witnesses. So I move to . . . I . . . I 

don’t want her to be able to testify given the fact that she’s been 

able to observe. And I apologize for not noticing, it’s just when I 

walked in . . . it’s my fault for not looking but I just happened to 

look over my shoulder and saw someone there.
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(Id. at 49.) DCS replied that J.G.’s testimony would not “at all be tainted by 

what’s [sic] she’s hearing thus far and I think that it . . . it would just prejudice 

the case to not allow her to testify.” (Id.) Based thereon, the trial court asked 

J.G. to leave the courtroom.

[15] Mother also objected when DCS called J.G. as a witness, arguing that she 

violated the separation of witnesses order when she “came back knowing that 

the Court had ordered her not to be here[.]” (Id. at 97.) DCS replied that all 

the testimony prior to J.G. had “primarily been [in] regards to [N.H.] and 

[M.H.]” and thus J.G. would not be biased by the earlier testimony. (Id.) The 

trial court overruled Mother’s objection and allowed J.G. to testify. 

[16] On appeal, Mother does not indicate how the trial court’s decision to allow J.G. 

to testify after J.G. was in the courtroom in violation of the separation of 

witnesses order was an abuse of the trial court’s discretion. We conclude the 

trial court did not abuse its discretion when it allowed J.G. to testify because 

J.G.’s testimony primarily involved J.C., not N.H., who was the subject of the 

testimony prior to J.G.’s testimony, and thus J.G.’s presence in the courtroom 

during the testimony regarding N.H. was unlikely to have prejudiced J.G.’s

testimony regarding J.C. See Roser v. Silvers, 698 N.E.2d 860, 865 (Ind. Ct. App. 

1998) (“In the absence of connivance or collusion by the party calling the 

witness, the trial court may permit the testimony of a witness in violation of a 

separation order.”).
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[17] After J.G.’s testimony, DCS called FCM White as a witness. Mother objected 

because FCM White was present for earlier testimony of Mother, M.H., and 

J.G. DCS argued FCM White was an “[a]gent representative” and thus not 

subject to the separation of witnesses order. (Tr. Vol. II at 111.) The trial court 

overruled Mother’s objection. Mother argues the trial court abused its 

discretion when it allowed FCM White to testify.

[18] Indiana Evidence Rule 615, which governs the separation of witnesses during a 

hearing, does not allow the exclusion of “an officer or employee of a party . . . 

after being designated as the party’s representative by its attorney.” Ind. Evid. 

R. 615(b). During the hearing, Mother acknowledged that FCM White was 

DCS’s agent representative. Therefore, the trial court did not abuse its 

discretion when it allowed FCM White to testify because FCM White could not 

be excluded by the separation of witnesses order. See Fourthman v. State, 658 

N.E.2d 88, 91 (Ind. Ct. App. 1995) (investigating officer was permitted to 

remain in the courtroom under the exception set forth in Indiana Evidence Rule 

615(b)), trans. denied.

3. CHINS Adjudication of J.C. and J.M.

[19] A CHINS proceeding is civil in nature, so DCS must prove by a preponderance 

of the evidence that a child is a CHINS as defined by the juvenile code. In re 

N.E., 919 N.E.2d 102, 105 (Ind. 2010). Indiana Code section 31-34-1-1 states:

A child is a child in need of services if before the child becomes 

eighteen (18) years of age:
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(1) the child’s physical or mental condition is seriously 

impaired or seriously endangered as a result of the 

inability, refusal, or neglect of the child’s parent, guardian, 

or custodian to supply the child with necessary food, 

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

and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without 

the coercive intervention of the court.

A CHINS adjudication “focuses on the condition of the child,” and not the 

culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding 

a child to be a CHINS is to provide proper services for the benefit of the child, 

not to punish the parent. Id. at 106.

[20] When a juvenile court enters findings of fact and conclusions thereon in a 

CHINS decision, we apply a two-tiered review. Parmeter v. Cass Cty. DCS, 878 

N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first consider whether 

the evidence supports the findings and then whether the findings support the 

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

clearly erroneous. Id. Findings are clearly erroneous when the record contains 

no facts to support them either directly or by inference, and a judgment is 

clearly erroneous if it relies on an incorrect legal standard. Id. We give due 

regard to the juvenile court’s ability to assess witness credibility and we do not 
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reweigh the evidence; we instead consider the evidence most favorable to the 

judgment with all reasonable inferences drawn in favor of the judgment. Id.

We defer substantially to findings of fact, but not to conclusions thereon. Id. 

Mother does not challenge the trial court’s findings of fact, and thus they stand 

as proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because 

Madlem does not challenge the findings of the trial court, they must be accepted 

as correct.”).

[21] Mother argues the trial court erred when it adjudicated J.C. and J.M. as 

CHINS because the incident relied upon by the trial court was “outdated” and 

“acute.” (Br. of Appellant at 48-9.) To support its CHINS petition, DCS 

alleged Mother drove with J.C., J.M., and N.H. for twenty-four hours from 

Florida to Indiana to seek medical treatment for J.M. Mother “presented at St. 

Francis Hospital stating ‘her children are being brain hacked’ and ‘her 

children’s brains were coming out of their heads.’” (App. Vol. II at 143.) J.C. 

reported to DCS that Mother “talked to herself saying things like, ‘get out of my 

head, and quit talking to me’ . . . [and] she would also tell [the children] that 

they had horns coming out of their heads.” (Id.) Emergency personnel at St. 

Francis examined the children, placed Mother on a ten-day psychiatric hold,

and then transferred Mother to the Valle Vista treatment center, leaving the 

children without care. Children were placed with various relatives.

[22] In the time between the children’s removal and the fact-finding hearing, Mother 

testified she has started a new medication for her mental illness but had yet to 
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engage in therapy. Regarding Mother’s actions in the intervening time, the trial 

court found:

44. Between 2/4/19 and 2/23/19, [Mother] went to Florida to 

work for her father. She did not participate in services during 

this period, but maintained phone contact with her children.

45. [Mother] saw the DCS service provider and therapist Jeremy 

five (5) times prior to her trip to Florida [from] 2/4/10 [sic] [to] 

2/23/19, and she states she has no [sic] missed any appointment 

[sic] with him except during the three (3) weeks between 2/4/19 

and 2/23/19.

46. [Mother] says her family doctor has complete and utter 

control and is always looking and evaluating if [Mother] needs a 

therapist, but currently her doctor is okay with [her] taking the 

medicine [she’s] taking and not working with a therapist except 

through DCS.

47. The only therapist [Mother] has seen in the last year is either 

because DCS required her to do so, or because she was detained 

involuntarily for a psychiatric evaluation at St. Francis and 

transported for [an] involuntary stay at Valle Vista.

48. [Mother] does not think it [is] important to see a therapist to 

address ongoing mental health issues [stating]: [“]Ive [sic] not 

gone because my doctor said the Zyprexa was working, they 

watched me there, and I was okay to go with the therapy I had 

done there, and my doctor cleared me, so I believe no.[”]

49. Regarding working with the DCS service provider and 

therapist, [Mother] states[:] [“]I’m not in any type of needs 

[sic].[”]
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(Id. at 145-6.)

[23] While the trial court noted the reason for DCS’s initial intervention, that is, 

Mother’s drive from Florida to Indiana to have her children treated at St. 

Francis hospital, it also made findings regarding Mother’s behavior at the factfinding hearing and in the time between the children’s removal and the hearing, 

and regarding Mother’s willingness to participate in services. The trial court’s 

findings cited supra and others in the order support the trial court’s conclusion:

Court finds that DCS has met its burden by a preponderance of 

evidence that [J.C.], and [J.M.], are children in need of services 

on the basis that those childrens [sic] physical or mental 

condition is seriously impaired or seriously endangered as a 

result of the inability, refusal, or neglect of the child’s parent, 

guardian, or custodian to supply the child with food, clothing, 

shelter, medical care, education, or supervision; and the child 

needs care, treatment, or rehabilitation that the child is not 

receiving; and is unlikely to be provided or accepted without the 

coercive intervention of the Court. Thirteen year-old [J.C.] has 

been the subject child of four (4) CHINS cases since he was 8, 

where [Mother] participated in and/or completed services to 

address domestic violence, substance usage, and mental health 

issues. Four year-old [J.M.] has been the subject child of three 

(3) CHINS cases since she was one year-old, where [Mother] 

participated in and/or completed services to address domestic 

violence, substance usage, and mental health issues. This most 

recent CHINS case begins with the children taken to a hospital 

by [Mother] upon the basis that [Mother] observed her child’s 

brains coming out of their heads. [Mother] thinks she does not 

need services to include therapy, notwithstanding this current 

CHINS is the fourth CHINS involving her and her children in 

five (5) years, certainly not for herself, and questionably for her 

children.
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[Mother’s] participation in and/or completion of court-ordered 

services, whether in prior cases or at the time of fact-finding has 

not resolved the need for these children to receive necessary 

supervision by a parent who is mentally healthy.

(Id. at 146-7.) Based thereon, we conclude the trial court did not err when it 

adjudicated J.M. and J.C. as CHINS. Contra Matter of E.K., 83 N.E.3d 1256, 

1262 (Ind. Ct. App. 2017) (reversing CHINS adjudication because DCS did not 

prove coercive intervention of the court was necessary when parents had made 

great strides in addressing the issues that resulted in CHINS investigation, 

retained custody of their children, and were actively participating in treatment), 

trans. denied.

Conclusion

[24] Mother has waived her due process arguments regarding her alleged inability to 

appeal the custody modification and the trial court’s denial of appointed 

counsel for the custody portion of the proceedings. Additionally, we hold the 

trial court did not abuse its discretion when it allowed J.G. and FCM White to 

testify; Mother did not indicate how the trial court abused its discretion when it 

allowed J.G. to testify in violation of the separation of witnesses order, and 

FCM White was exempt from the separation of witnesses order by virtue of the 

fact that she was DCS’s agent representative. Finally, the trial court did not err 

when it adjudicated J.C. and J.M. as CHINS. Accordingly, we affirm.

[25] Affirmed.
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Najam, J., and Bailey, J., concur.