Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 1 of 13

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

Roberta Renbarger

Renbarger Law Firm

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Abigail R. Recker

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

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

(Minor Children), 

Children in Need of Services,

and

P.W. (Mother) and J.W. 

(Stepfather),

Appellants-Respondents,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner

January 8, 2019

Court of Appeals Case No.

18A-JC-1791

Appeal from the Wells Superior 

Court

The Honorable Kenton W. 

Kiracofe, Judge

Trial Court Cause Nos.

90C01-1802-JC-2, -3
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1791| January 8, 2019 Page 2 of 13

Crone, Judge.

Case Summary

[1] P.W. (“Mother”) and J.W. (“Stepfather”) (collectively “Appellants”) appeal a 

trial court order adjudicating Mother’s sons, J.S. and M.S. (collectively “the 

Children”), as children in need of services (“CHINS”). They challenge the 

sufficiency of the evidence to support the CHINS determination and raise a due 

process argument concerning J.S.’s placement. We affirm.

Facts and Procedural History

[2] Following her divorce from P.S. (“Father”),

1 Mother was awarded physical 

custody of J.S. (born in 2004) and M.S. (born in 2008). In 2017, the Children 

were living with Mother and Stepfather. Early that year, Appellants discovered 

that J.S. had been viewing online pornography. In November 2017, M.S. 

disclosed to Appellants that J.S. had been molesting him for a few months. 

When Stepfather confronted J.S. with M.S.’s allegations, he became physical 

with J.S., knocking him off his feet. Appellants immediately contacted Father, 

who took J.S. to his house temporarily. Meanwhile, Appellants decided that 

the Children would not be left together except under supervision and that they 

would install alarms on their bedroom doors. In the middle of January, Father 

 

1

 Father is not participating in this appeal.
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called Weber and Associates to schedule initial intake appointments for 

counseling for the Children. Tr. Vol. 2 at 23.

[3] On January 20, 2018, the Indiana Department of Child Services (“DCS”) 

received a report that J.S. had molested M.S. over a three-month period and 

that Mother had failed to seek services for the Children. That same day, DCS 

Family Case Manager (“FCM”) Lindsey Feinberg visited Appellants’ home to 

conduct an assessment. The Children were not home, and Appellants indicated 

that they were both at Father’s house. When FCM Feinberg attempted to 

discuss the allegations with Appellants, Stepfather told her that they would 

neither speak to her nor allow her to interview the Children until they had 

consulted their attorney. When she walked through the home, she saw no signs 

of any alarms on the Children’s bedroom doors. Before she left, she completed

a safety plan specifying that Appellants must maintain contact with her, keep 

the Children separated, and obtain counseling services for each child. The next 

day, Stepfather contacted FCM Feinberg and told her about the pornographic 

website that J.S. had been visiting. FCM Feinberg told Stepfather that per DCS 

protocol, both boys needed to undergo a forensic interview. 

[4] On January 22, 2018, FCM Feinberg contacted Mother, who told her that she 

had set up counseling appointments for the Children at Weber and Associates. 

Later that day, Stepfather told FCM Feinberg that the Children would be going 

for counseling appointments at Phoenix and Associates (“Phoenix”). FCM 

Feinberg reminded Stepfather about the Children’s need for forensic interviews, 

and Stepfather told her that Appellants’ attorney (“Counsel”) would be 
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handling the scheduling of forensic interviews. FCM Feinberg also attempted 

to contact Father but was unsuccessful.

[5] Meanwhile, Counsel contacted FCM Feinberg and indicated preferences 

concerning the times, location, and personnel involved in conducting the 

forensic interviews. Counsel also requested that there be no police presence at 

the interviews, which DCS declined, and demanded that the interviews be 

conducted after regular school hours. FCM Feinberg arranged the interviews at 

the requested location, scheduled them for January 24, 2018, and notified 

Appellants and Counsel. Stepfather indicated that he did not want the forensic 

interviews to take place until the Children were in counseling. Counsel said 

that the interviews were scheduled on too short of notice and wanted them to 

be conducted at her law office instead. DCS denied the request but rescheduled 

the interviews for February 1, 2018, at Appellants’ previously requested 

location. The Children did not attend the forensic interviews as scheduled, and 

DCS filed a motion to compel conduct. 

[6] On February 5, 2018, the trial court issued orders to comply with the DCS 

investigation. DCS rescheduled the forensic interviews for February 7, 2018. 

Mother brought M.S. for his interview as scheduled, but J.S. did not attend his 

interview. During M.S.’s interview, he disclosed that J.S. had repeatedly forced 

him to perform oral sex on him, to the point that M.S.’s mouth hurt. He also 

reported that J.S. performed anal intercourse on him and showed him a 

pornographic video. M.S. indicated that J.S. had threatened him and ordered 

him not to disclose the molestation. The assaults took place over a two- to 
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three-month period inside the Children’s house or inside a barn on their 

property. M.S. also revealed that Stepfather had punched J.S. to the floor and 

kicked him when he confronted J.S. about the sexual assault. He also revealed 

that on previous occasions when Stepfather had spanked him, he left red marks 

and it hurt to sit down. 

[7] The day after M.S.’s forensic interview, DCS filed a petition to remove and 

detain the Children. Meanwhile, FCM Feinberg made further attempts to 

contact Father. The trial court granted DCS’s petition and signed an 

emergency protective custody order for both boys, who were then taken from 

their schools. J.S. was placed at Pierceton Woods in an inpatient treatment 

program designed to prevent relapse by juvenile sex offenders. M.S. was placed 

in foster care. That same day, Father returned FCM Feinberg’s call and 

reported that he had not returned her previous phone calls because Appellants

had told him to have no contact with DCS. When asked, he told FCM 

Feinberg that he had a brother and a sister who might serve as relative 

placements. 

[8] On February 9, 2018, DCS filed CHINS petitions as to J.S. and M.S. A few 

days later, M.S. was removed from foster care and was placed with Father. He 

participated in counseling at Phoenix, home-based services with Father, and 

supervised visitation with Mother. In March 2018, DCS petitioned to change 

J.S.’s placement to an inpatient program at Redwood due to a couple missed 

medication incidents at Pierceton Woods. The court granted the petition 

without a hearing, but after an investigation into the reasons for the missed 
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medication doses, J.S. was allowed to remain at Pierceton Woods, where his 

caseworkers report that he is doing well and is advancing more rapidly than 

most other juveniles in the program. 

[9] After a multi-day factfinding hearing, on June 27, 2018, the trial court issued an 

order with findings of fact and conclusions thereon adjudicating J.S. and M.S. 

as CHINS. Following a July 9, 2018 dispositional hearing, Mother was 

ordered to complete a parenting assessment and psychological evaluation and 

to attend all scheduled visitations with the Children. Stepfather failed to attend 

the July hearing and had his dispositional hearing in August. The dispositional 

decree as to Stepfather is not included in the record. Appellants now appeal. 

Additional facts will be provided as necessary.

Discussion and Decision

Section 1 – The evidence is sufficient to support the CHINS 

determination.

[10] Appellants challenge the sufficiency of the evidence to support the CHINS 

determination. When reviewing the sufficiency of evidence, we give due regard 

to the trial court’s ability to assess the credibility of witnesses. In re Des.B., 2 

N.E.3d 828, 836 (Ind. Ct. App. 2014). We neither reweigh evidence nor judge 

witness credibility; rather, we consider only the evidence and reasonable 

inferences most favorable to the trial court’s decision. In re K.D., 962 N.E.2d 

1249, 1253 (Ind. 2012). Where the trial court issues findings of fact and 

conclusions thereon, we apply a two-tiered standard of review. In re R.P., 949 
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N.E.2d 395, 400 (Ind. Ct. App. 2011). We consider first whether the evidence 

supports the findings and then 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. Appellate courts generally grant latitude and 

deference to trial courts in family law matters. Matter of E.K., 83 N.E.3d 1256, 

1260 (Ind. Ct. App. 2017), trans. denied (2018). This deference recognizes the 

trial court’s “unique ability to see the witnesses, observe their demeanor, and 

scrutinize their testimony, as opposed to this court’s only being able to review a 

cold transcript of the record.” Id.

[11] In a CHINS proceeding, DCS bears the burden of proving by a preponderance 

of the evidence that a child meets the statutory definition of a CHINS. In re 

N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing 

CHINS status, DCS must prove that the child is under age eighteen, 

(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.

Ind. Code § 31-34-1-1. 
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[12] Although the acts or omissions of one or both parents can cause a condition 

that creates the need for court intervention, the CHINS designation focuses on 

the condition of the children rather than on an act or omission of the parent(s). 

N.E., 919 N.E.2d at 105. In other words, despite a “certain implication of 

parental fault in many CHINS adjudications, the truth of the matter is that a 

CHINS adjudication is simply that – a determination that a child is in need of 

services.” Id. (citations omitted). 

[13] Appellants do not dispute that the Children need care, treatment, or 

rehabilitation. Rather, they maintain that the trial court erred in ultimately 

determining that they are unable or have refused or neglected to supply the 

Children with necessary supervision or treatment in the aftermath absent the 

court’s coercive intervention. Because they do not specifically challenge any of 

the court’s findings, we simply determine whether the unchallenged findings are 

sufficient to support the judgment. T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 

104, 110 (Ind. Ct. App. 2012), trans. denied. 

[14] In challenging the trial court’s determination that the Children were unlikely to 

receive necessary treatment absent its coercive intervention, Appellants claim 

that by the time DCS became involved, they had already taken every step 

necessary to help the Children except for the actual counseling appointments. 

They point to safety measures such as bedroom door alarms, as well as the 

separation and supervision of the Children. However, FCM Feinberg testified 

that she looked and did not notice any door alarms when she toured 

Appellants’ home two months after M.S.’s disclosures. Tr. Vol. 2 at 89. As for
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the Children’s separation, FCM Feinberg testified that at the time of her visit, 

Appellants told her that the boys were both at Father’s for a couple days. Id. at 

90. Mother also cites her ill health as a reason for waiting nearly two months to 

arrange counseling for the Children. The record shows that she indeed suffered 

health issues and a brief hospitalization between the time of M.S.’s disclosures 

and DCS’s involvement. Nevertheless, other than Father’s mid-January call to 

arrange intake appointments at Weber and Associates, it appears that neither 

Father nor Stepfather took any initiative to ensure that the Children received

treatment/counseling while Mother was indisposed. 

[15] The uncontested findings also reflect that Appellants repeatedly failed to 

cooperate with DCS. From FCM Feinberg’s first visit to their home to the time 

of the factfinding hearing, Appellants were not forthcoming with DCS. 

Stepfather essentially told FCM Feinberg that they would neither talk to her nor 

allow the Children to do so until they secured legal counsel. Appellants also 

instructed Father not to talk to FCM Feinberg and told him that their attorney

was handling matters. FCM Feinberg accommodated Appellants’ various 

specifications as to the location, time, and certain personnel to be involved in 

the Children’s forensic interviews. Yet, appointments were repeatedly 

rescheduled due to Appellants’ failure to present the Children for those 

interviews. See Appealed Order at 5 (finding 42 describing DCS’s 

“extraordinary efforts” to speak to Children, Mother, and Counsel, and finding 

that “Mother, along with her attorney, thwarted those efforts by not appearing 

at the scheduled interviews on several occasions.”). DCS eventually sought and 
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obtained an order to compel cooperation, and even then, Appellants’ 

compliance was only partial; they brought M.S., but not J.S., to be interviewed. 

As of the date of the factfinding hearing, J.S. had yet to sit for a forensic 

interview. This amounts to a demonstrated unwillingness by Appellants to 

provide necessary treatment for the Children even with the court’s coercive 

intervention. 

[16] As for Mother’s assertion that she could not keep the Children apart and 

present them both for their interviews, the record shows Father and Stepfather 

both to be licensed drivers who could have pitched in to ensure that each boy 

separately arrived at his interview as scheduled. Stepfather testified that he 

ordinarily does not drive the Children but would be available to drive them in 

emergency situations. Tr. Vol. 2 at 28-29. It is difficult to see how this would 

not have qualified as one of those situations. 

[17] With respect to J.S.’s treatment at Pierceton Woods, caseworker Bethany 

Figolah testified that though J.S. has advanced rapidly through the levels of 

treatment, he can advance no further without submitting to a polygraph, which 

he is willing to do but for which Appellants have not granted permission. Id. at 

40-41. In addressing the reasons for placing M.S. with Father after a brief stay 

in foster care, the court relied on M.S.’s assertions that Stepfather had 

physically abused J.S. on the night of the disclosures and had left red marks 

after past spankings of M.S. Appellants claim that M.S.’s descriptions are 

exaggerated and lack corroboration, but as the trial court accurately observed, it

was Appellants who facilitated the vacuum by repeatedly refusing to present
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J.S. for a forensic interview. Appellants’ argument concerning exaggerated 

descriptions is an invitation to reweigh evidence and reassess witness 

credibility, which we cannot do. 

[18] Simply put, the uncontested findings support the trial court’s ultimate 

determination that it is in the Children’s best interests to be removed from the 

home environment, that remaining in the home would be contrary to their 

welfare due to Appellants’ inability to provide care and/or supervision without 

coercive intervention, and that the Children each need “protection that cannot 

be provided in the home.” Appealed Order at 6-7. As such, we affirm the 

CHINS determination. 

Section 2 – Appellants were not denied due process concerning 

J.S.’s placement.

[19] Appellants allege that they were denied due process based on DCS’s alleged 

failure to consider placing J.S. with relatives and its decision to place him at a 

facility that is fifty miles from their home. Because every CHINS proceeding 

has the potential to interfere with parents’ rights to raise their children, due 

process protections are vital at every stage of the proceedings. In re L.C., 23 

N.E.3d 37, 40 (Ind. Ct. App. 2015), trans. denied. For this reason, we balance 

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

by the State’s chosen procedure; and (3) the countervailing governmental 

interest supporting use of the challenged procedure.” In re G.P., 4 N.E.3d 1158, 

1165-66 (Ind. 2014) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

Ultimately, due process requires “the opportunity to be heard at a meaningful 
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time and in a meaningful manner.” K.D., 962 N.E.2d at 1257 (quoting 

Mathews, 424 U.S. at 333).

[20] Indiana Code Section 31-34-4-2(a) requires that in CHINS proceedings, before 

DCS places the child in an out-of-home placement, it must consider a relative 

placement. Subsection (b) defines a relative placement as “a relative related by 

blood, marriage, or adoption.” Here, the trial court removed the Children from 

Appellants’ care immediately after M.S.’s forensic interview. M.S.’s disclosures 

concerning sexual and physical abuse occurring in Appellants’ home 

underscored the gravity of the circumstances. The court emphasized this in its 

conclusions, stating “that reasonable efforts to prevent or eliminate removal of 

the Children were not required due to the emergency nature of the situation[.]” 

Appellants’ App. Vol. 2 at 23.

[21] Appellants’ argument appears twofold: that DCS should have placed J.S. in a 

facility closer to their home, and that DCS failed to consider relative placement. 

FCM Feinberg stated that her primary concern was getting J.S. the help he 

needed. Tr. Vol. 2 at 100. With this goal in mind, J.S. was placed in a facility 

with a program specifically geared for juvenile sex offenders, albeit fifty miles 

from Appellants’ home. Though similar facilities may exist that are closer to 

Appellants’ home, the statute makes no requirement as to inpatient treatment in 

proximity to a particular parent. While we appreciate Appellants’ interest in 

having J.S. placed in a convenient location, we believe that in these dire 

circumstances, the State’s countervailing interest in protecting the Children 
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supports J.S.’s placement in the specialized treatment program offered at 

Pierceton Woods. 

[22] With respect to DCS’s alleged failure to consider a relative placement, 

Appellants admit in their brief that FCM Feinberg “talked to [Father] about 

whether he had relatives in the area [and that Father] disclosed that he had a 

sister and brother in the area.” Appellants’ Br. at 21 (citing Tr. Vol. 2 at 100). 

Their complaint in this regard appears to center on FCM Feinberg’s testimony 

that she discussed the matter only with Father and did not speak to them about 

possible placement with either of their relatives. The statute does not require 

DCS to conduct an exhaustive search for suitable relatives; rather, it simply 

requires that DCS consider relative placement, which it did. Appellants were not 

denied due process due to J.S.’s placement. Accordingly, we affirm.

[23] Affirmed.

Vaidik, C.J., and Mathias, J., concur.