Preview:

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: STEFAN J. POLING Rollo, Harter & Poling, LLP Huntington, Indiana ATTORNEYS FOR APPELLEE: ELIZABETH A. GAMBOA Johnson County Department of Child Services Franklin, Indiana ROBERT J. HENKE Department of Child Services Central Administration Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF M.M., Minor Child Alleged to be In Need of Services, S.H., Appellant-Respondent, vs. THE INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Dec 29 2010, 9:39 am

CLERK

No. 85A02-1006-JC-776

APPEAL FROM THE WABASH CIRCUIT COURT The Honorable Robert R. McCallen, III, Judge Cause No. 85C01-0911-JC-41

December 29, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues S.H. ("Mother") appeals the trial court's determination that her minor daughter, M.M., is a child in need of services ("CHINS"). Mother raises two issues: 1) whether the trial court erred in admitting a DVD interview of M.M. in the CHINS determination hearing, and 2) whether sufficient evidence supports the trial court's determination that M.M. is a CHINS. Concluding the trial court did not err in admitting the DVD interview and sufficient evidence supports the CHINS determination, we affirm. Facts and Procedural History M.M. was born in 2001. From at least as early as January 2006, M.M. has resided with T.H., her step-father, in addition to Mother and her two brothers; her biological father is deceased. In November 2009, following a program at her school designed to detect and prevent child abuse and molestation, M.M. confided in a Department of Child Services ("DCS") case manager that T.H. had touched her inappropriately. M.M. was then taken to a child advocacy center, where an interview was taken and recorded on a DVD. M.M. described her molestation by T.H. and was taken into DCS custody, and then a CHINS petition was filed and a CHINS determination hearing scheduled. In February 2010, the trial court held a preliminary hearing regarding DCS's petition to introduce the recorded interview as evidence at the CHINS determination hearing. In support of its petition, DCS attached an affidavit by Dr. Arthur Kupersmith, Ph.D., a

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psychologist and health service provider in psychology, in which he stated "due to the substantial likelihood of emotional and mental harm to the child, . . . the child should not testify and should be considered unavailable for such purposes." Appellant's Appendix at 17. The trial court ruled in favor of DCS, allowing the DVD to be admitted into evidence at the CHINS determination hearing. The DVD was so admitted

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