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.

ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

CATHERINE S. CHRISTOFF GREGORY F. ZOELLER

Fort Wayne, Indiana Attorney General of Indiana

Indianapolis, Indiana

THOMAS C. ALLEN

Fort Wayne, Indiana DAVID E. COREY

Deputy Attorney General

Indianapolis, Indiana

ROBERT J. HENKE

Indiana Department of Child Services

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF A.S.G., A.M.G., S.T.B., and A.G.B., )

Children Alleged to be Children in Need of Services, )

)

B.G., Mother, and S.B., Father, )

)

Appellants-Respondents, )

)

vs. ) No. 02A03-1304-JC-158

)

INDIANA DEPARTMENT OF CHILD SERVICES, )

)

Appellee-Petitioner. )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Charles F. Pratt, Judge

The Honorable Thomas P. Boyer, Magistrate

Cause Nos. 02D08-1210-JC-446, 02D08-1210-JC-447,

02D08-1210-JC-448 and 02D08-1210-JC-449

September 24, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
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STATEMENT OF THE CASE

S.B. (“Father”) and B.G. (“Mother”) (collectively “Parents”) appeal the trial 

court’s order determining A.S.G., A.M.G., S.T.B., and A.G.B. to be children in need of 

services (“CHINS”). Parents present a single issue for our review, namely, whether the 

trial court erred when it admitted into evidence videotaped statements by A.S.G. and 

A.M.G.

We affirm.

FACTS AND PROCEDURAL HISTORY

Mother has four children, A.S.G., born June 24, 2007; A.M.G., born August 22, 

2008; S.T.B., born October 6, 2010; and A.G.B., born October 20, 2011 (collectively “the 

children”). Father is the father of S.T.B. and A.G.B. The father of A.S.G. and A.M.G. is 

not participating in this appeal. Following reports that Mother and Father were abusing 

the children, and following a preliminary inquiry hearing on October 11, 2012, the trial 

court found probable cause to believe that the children were CHINS and authorized the 

Allen County Department of Child Services (“DCS”) to file its CHINS petitions. DCS 

placed the children in foster care.

On November 5, DCS filed its amended verified petition alleging that the children 

were CHINS. In particular, DCS alleged that Father had molested A.S.G. and A.M.G. 

and that both Mother and Father used a belt “to inflict physical discipline on all of the 

children.” Appellee’s App. at 6. On November 15, the trial court held an initial hearing 

on the CHINS petitions, and the parents admitted to certain allegations and denied others. 

The trial court set a factfinding hearing for February 19, 2013.
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On February 13, DCS faxed to parents’ attorneys its Petition for Hearing to 

Introduce Child’s Statement/Videotape, which set out the statutory requirements of 

Indiana Code Sections 31-34-13-2 through -4, as well as the nature of the statements 

contained in the videotape to be introduced at the factfinding hearing. In particular, the 

Petition stated as follows:

(a) The child [A.M.G.] stated to Jacob Lester (counselor, [case manager], 

Police, etc.), the following:

i) [Father] touched her between her legs.

(b) The child [A.S.G.] stated to Julie DeJesus, forensic interviewer at the 

Bill Lewis Center for Child Advocacy the following:

i) all children in the home getting “whooped” with a belt by 

both [Mother] and [Father].

ii) being touched on her “coochie.”

(c) The child [A.M.G.] stated to Julie DeJesus, forensic interviewer at the 

Bill Lewis Center for Child Advocacy the following:

i) all children in the home getting “whooped” with a belt by 

both [Mother] and [Father].

ii) being touched on her “coochie” by [Father] with his hand 

three different times. One time on the inside of her “coochie” 

and the other two times on the outside of her “coochie.”

iii) that [A.M.G.] has a secret with her Mommy and that the 

secret was that she was not supposed to talk about her 

“coochie.”

Appellee’s App. at 20.

At the beginning of the factfinding hearing on February 19, Parents’ attorneys 

objected to the admission into evidence of the videotaped statements of A.S.G. and 

A.M.G. for DCS’s failure to comply with Indiana Code Section 31-34-13-4, which
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requires that DCS give parents notice of its intention to use a child’s videotaped

statements as evidence at least seven days prior to a proceeding. The trial court overruled 

that objection and proceeded with the factfinding hearing. After taking the matter under 

advisement, the trial court adjudicated the children to be CHINS. This appeal ensued.

DISCUSSION AND DECISION

Indiana Code Section 31-34-13-2 provides in relevant part that a statement or 

videotape that is made by a child who at the time of the statement or videotape is less 

than fourteen years of age, concerns an act that is a material element in determining 

whether a child is a CHINS, and is not otherwise admissible in evidence under statute or 

court rule, is admissible in evidence in a CHINS action if the requirements of Indiana 

Code Section 31-34-13-3 are met.

1

 And Indiana Code Section 31-34-13-4 provides:

A statement or videotape may not be admitted in evidence under this 

chapter unless the attorney for the department informs the parties of:

(1) an intention to introduce the statement or videotape in 

evidence; and

(2) the content of the statement or videotape;

at least seven (7) days before the proceedings to give the parties a fair 

opportunity to prepare a response to the statement or videotape before the 

proceeding.

Here, the evidence shows that DCS faxed its petition to introduce into evidence 

the children’s videotaped statements six days prior to the CHINS hearing instead of seven 

days prior. Accordingly, at the beginning of the factfinding hearing, Parents’ attorneys 

objected to the admission of the videotaped statements.

 

1

 Parents do not dispute that the requirements of Indiana Code Section 31-34-13-3 are satisfied 

here.
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Parents suggest that they were denied due process as a result of DCS’ untimely 

notice. A fundamental requirement of due process is the opportunity to be heard at a 

meaningful time and in a meaningful manner. Hite v. Vanderburgh Co. OFC, 845 N.E.2d 

175, 180 (Ind. Ct. App. 2006). Procedural irregularities in a CHINS proceeding may be 

of such import that they deprive a parent of procedural due process with respect to a 

potential subsequent termination of parental rights. In re J.Q., 836 N.E.2d 961, 966 (Ind.

Ct. App. 2005).

Parents’ sole contention on this issue is that they were prejudiced by the trial 

court’s admission into evidence of the videotaped statements. But Parents do not make 

any cogent argument suggesting that they were denied a fair hearing or the opportunity to 

be heard in a meaningful manner. Parents merely contend that DCS’ failure to timely file 

its notice of intent to introduce the videotaped statements into evidence requires reversal

as a matter of law. But it is well settled that error in the admission or exclusion of

evidence will not result in reversal on appeal “unless refusal to take such action appears 

to the court inconsistent with substantial justice.” Ind. Trial Rule 61.

Parents have failed to allege or demonstrate that they were harmed in their efforts 

to prepare for the factfinding hearing when DCS filed its notice of its petition one day 

after such notice was due. First, as the trial court found, DCS provided copies of the 

Intake Officer’s Report of Preliminary Inquiry and Investigation (“the Report”) to Parents 

on October 30, 2012. The Report detailed the content of the statements A.S.G. and 

A.M.G. gave during the videotaped interviews. Further, on January 14, 2013, DCS filed 

its final witness and exhibit list, which listed the videotaped interviews as exhibits to be 
6

introduced at the hearing. Parents made no effort to obtain those recordings for review 

through discovery prior to the factfinding hearing. And, importantly, Parents did not seek 

a continuance of the factfinding hearing.

DCS’ statutory violation in this case is akin to a discovery violation. And in the 

context of discovery violations, a continuance is the usual remedy; “[e]xclusion of the 

evidence is an extreme remedy and is to be used only if the State’s actions were 

deliberate and the conduct prevented a fair trial.” Berry v. State, 715 N.E.2d 864, 866 

(Ind. 1999). Here, there is no suggestion that DCS’ actions were deliberate or that they

prevented a fair hearing. Parents make no argument regarding what they would have 

gained by an additional day of notice, and they did not feel so prejudiced by the one day 

deficiency that they moved for a continuance. Indeed, because they had notice of the 

content of the videotaped statements and an opportunity to obtain copies of those 

statements through discovery months before the factfinding hearing, under these facts and 

circumstances, we hold that Parents were not denied a fair hearing, and that the trial 

court’s admission of the evidence is not inconsistent with substantial justice.

Affirmed.

MATHIAS, J., and BROWN, J., concur.