CHINS ruling upheld despite impermissible phone testimony

A child in need of services adjudication was upheld Thursday by the Indiana Court of Appeals after it found that the admission of testimony by phone from a doctor amounted to harmless error.

As a result of physical abuse and domestic violence between parents S.T. and J.T., three of their four minor children were adjudicated as children in need of services. The adjudication stemmed from injuries one of the children sustained after J.T. admitted to “whooping” the child as punishment.

After receiving a report that one of the children had bruising on her face and bottom, a family case manger visited the children and their mother, who were residing apart from J.T. for the weekend. The Department of Child Services requested a “peds referral” for the child, and Dr. Angela Blum, general pediatrician and chief of pediatric services at MHP Medical Center in Shelbyville, discovered that the child’s injuries were not simply sustained from a fall from her pack-and-play as mother had suggested.

S.T. eventually told the FCM that the children’s father had picked her up and thrown her one week before she gave birth to their fourth child and had “shoved her into a tub, with her first pregnancy.” J.T. eventually admitted to the FCM that he had spanked the child with more force than he needed after finding her out of the playpen.

That day, DCS filed a petition alleging the fourth child was a CHINS because there was physical abuse in the home directed toward the child’s siblings. It also alleged J.T. was abusive toward S.T. and had been previously arrested for harming both her and another child, and that the three older siblings had been previously adjudicated CHINS due to physical abuse.

The Bartholomew Circuit Court granted DCS’s motion for Dr. Blum to testify by phone, and during the hearing, S.T. admitted that there had been three separate incidents of domestic violence while she was pregnant. At the time of the hearing, J.T. faced two pending Level 6 felony domestic battery charges.

The trial court ultimately found the child to be a CHINS, prompting an appeal from both parents arguing the court abused its discretion in allowing Dr. Blum to testify by phone and by admitting evidence of J.T.’s past domestic violence charges.

An appellate panel affirmed in In the Matter of: L.T. And S.T. (Mother) v. Indiana Department of Child Services, 19A-JC-2667, first noting that although the trial court did not comply with the clear dictates of Administrative Rule 14 and therefore erred in permitting Dr. Blum to testify telephonically, the error was harmless because DCS presented other evidence of probative value to support the CHINS determination.

Additionally, the appellate court rejected the parents’ contention that the trial court abused its discretion by admitting an investigative report attached to a probable cause affidavit of Father’s 2010 criminal conviction. It found that because the investigative report was not admitted to prove the truth of the domestic battery asserted, it could not be characterized as hearsay. Likewise, it found that because this is the first CHINS case involving the child, the 2010 criminal conviction was properly admitted.

Addressing the CHINS adjudication specifically, the appellate court found that in light of the family’s history of domestic violence and physical abuse of the children, it could not conclude that the trial court’s order was clearly erroneous.

“Parents’ main contention revolves around the trial court’s reliance on Dr. Blum’s inadmissible telephone testimony when issuing its Order. However, disregarding Dr. Blum’s testimony, there is sufficient evidence in the record to support DCS’s CHINS petition by a preponderance of the evidence,” Judge Patricia Riley wrote for the appellate court.

In a separate opinion, Judge Elizabeth Tavitas concurred in result with the majority’s conclusion but parted ways regarding the probable cause affidavit.

“In its Appellee’s Brief, DCS argues: ‘The investigative report is not hearsay because it was not used for the truth of the matter asserted, but rather to show why Father was charged with the two counts of domestic battery.’ The majority agrees with DCS and does not address Indiana Evidence Rule 803 in its analysis. I disagree that the probable cause affidavit was not used for the truth of the matter asserted,” Tavitas opined. “Accordingly, the admission of the document is controlled by Evidence Rule 803.”