ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
JAMES H. HOLDER, JR. PAUL J. WATTS
Bainbridge, Indiana PETE S. RAVENTOS
Watts Law Office, P.C.
COURT OF APPEALS OF INDIANA
ROBERT MAYBAUM & SUSAN MAYBAUM,
vs. ) No. 67A01-9906-JV-223
PUTNAM COUNTY OFFICE OF FAMILY &
APPEAL FROM THE PUTNAM CIRCUIT COURT
The Honorable Diana J. LaViolette, Judge
Cause No. 67C01-9811-JC-17
February 18, 2000
OPINION - FOR PUBLICATION
GARRARD, Senior Judge
Appellants Susan and Robert Maybaum (Maybaums) appeal the trial court's order, adjudicating their
daughter a Child In Need of Services (CHINS). The Maybaums allege that
the Putnam County Office of Family & Children (OFC) did not provide sufficient
evidence to prove the allegations contained within the CHINS petition.
Facts and Procedural History
P.M. is the adopted daughter of Robert and Susan Maybaum. On November
6, 1998, the OFC received a report that P.M. had been sexually abused.
During an interview, P.M. identified her father as the perpetrator. As
a result, the OFC obtained an emergency detention order and P.M. was placed
in foster care.
On November 10, 1998, the OFC filed a petition, alleging that P.M. was
a CHINS under Ind. Code § 31-34-1-3 because she was a victim of
a sex offense. Record at 8. Specifically, the OFC alleged that
Robert had forced P.M. to perform oral sex on him at the family
residence. Because the Maybaums denied the allegations, the trial court scheduled a
Prior to the hearing, P.M. was examined by a physician who concluded that
P.M.s genital examination revealed clear evidence of penetrating injury. Record at 86.
That report was subsequently admitted during the OFCs case-in-chief through the testimony
of Linda Airhart, the OFCs family case manager who investigated the allegations of
abuse. Record at 214-15. However, on cross-examination Airhart conceded that the
medical report did not identify Robert as the perpetrator. Airhart further stated
that P.M. had admitted that she had been sexual[ly] acting out with other
children. Record at 220.
P.M. was also called to testify for the OFC. However, her testimony
was riddled with equivocal statements. For example, although P.M. testified on direct
examination that her father forced her to perform oral sex on him, on
cross-examination she stated that she was very upset with [her] parents for making
[her] follow the rules at home and do chores, and preventing her from
seeing her friends. Record at 236. P.M. further testified that if
the discipline problems in [her] home were relaxed or better, [her] story in
regards to molestation would change. Record at 240-41. On redirect examination,
P.M. stated that she did not know what the word molestation meant and
further stated that when she said that she might change her story, she
was not talking about changing her story about her fathers alleged acts.
Record at 242. However, once defense counsel again questioned P.M., she stated
that she knew what molestation meant. Record at 245.
After the OFC rested, Robert presented several witnesses on his behalf, including his
family physician, Dr. William Pruett who testified that in October of 1997 Robert
saw him because of an alleged problem with impotency. Record at 249.
The Maybaums' daughter, A.M., testified that she believed P.M. had concocted the
story about her father because she did not like to follow the rules
in her home and P.M. did not want to get in trouble for
allegedly touching A.M.s private parts. Record at 284-85. Robert also testified,
claiming that he had been impotent since 1989. Record at 271.
He also denied that he had touched P.M. in any manner. Record
at 273. Roberts wife, Susan, also testified and confirmed Roberts testimony by
testifying that she believed Robert was impotent. Record at 279.
Following the hearing, the trial court entered findings of fact and conclusions of
law, adjudicating P.M. a CHINS. In its findings, the trial court found
that P.M. ha[d] been a victim of molestation a genital examination revealed clear
evidence of penetrating injury and that [e]vidence would indicate incidents of sexual
activity and abuse over the last six years, with the mother testifying to
incidents of masturbation and sexual exploration and contact with siblings. Record at
80. The trial court concluded, however, that there was insufficient evidence to
find that Robert had molested P.M. as the OFC had alleged under I.C.
§ 31-34-1-3. Nonetheless, the trial court concluded that because Robert has a
legal responsibility to care for P.M. and by either act or omission failed
to protect [P.M.] from injury, P.M. was a CHINS under
Ind. Code §
31-34-1-2. Record at 81.
Discussion and Decision
The Maybaums contend that the juvenile court improperly based its decision that P.M.
was a CHINS upon a set of facts which were not set forth
in the CHINS petition. In particular, the Maybaums contend that because the
petition alleged that P.M. was a victim of a sex offense at the
hands of her father, the OFC was required to prove those specific allegations.
Consequently, the Maybaums contend that because the trial courts conclusion was based
upon Roberts failure to protect P.M. from injury, the courts order is not
valid and binding.
In response, the OFC concedes that its petition alleged that P.M. was the
victim of a sex offense under I.C. § 31-34-1-3 and, in particular, that
P.M. had been molested by her father. However, the OFC contends that
because the trial court in its findings of fact found that P.M. had
been molested, albeit by someone other than her father, it satisfied the statutory
provision cited in its petition.
The OFCs response misses the mark. While we agree that the trial
court found that P.M. had been molested, it did not base its ultimate
determination, that P.M. was a CHINS, upon I.C. § 31-34-1-3. Instead, the
trial court elected to base its determination on I.C. § 31-34-1-2 which supports
a CHINS adjudication if the childs physical or mental health is seriously endangered
due to injury by the act or omission of the childs parent, guardian,
or custodian. In particular, the trial court found that Robert had a
legal responsibility for the care, custody and control of his child and by
either act or omission failed to protect P.M. from injury. Although from
the juvenile courts findings we can deduce that the injury from which Robert
failed to protect P.M. was the penetrating injury revealed in the medical exam,
the fact remains that the trial court ultimately based its CHINS adjudication upon
a statutory provision and set of facts which were not included in the
In order to determine whether such a deviation was allowable, we examine the
provisions under the CHINS statute. According to Article 34, entitled Juvenile Law:
Children In Need of Services, and in particular, Chapter 1, there are
several circumstances and corresponding sections under which a child may be adjudicated a
CHINS. See I.C. §§ 31-34-1-1 to 11. Consequently, Section 3 of
Chapter 9 states that a CHINS petition must contain [a] citation to the
provision of the juvenile law that defines a child in need of services
and a concise statement of the facts upon which the allegations are based,
including the date and location at which the alleged facts occurred. I.C.
§ 31-34-9-3(4)(B),(C) (emphasis added). Further, before the juvenile court holds the mandatory
initial hearing on the CHINS petition, a summons shall be issued [under Ind.
Trial Rule 4] for the . . . child, the childs parent, guardian,
custodian, or guardian ad litem, and [a]ny other person necessary for the proceedings.
I.C. § 31-34-10-2(a), (b). A copy of the petition must accompany
each summons. I.C. § 31-34-10-2(c).
Presumably, these provisions were enacted to give the childs parent, guardian or custodian
notice of the allegations and the opportunity to contradict the OFCs case
See Ind. Code § 31-32-2-3 (stating that in CHINS proceedings a parent is
entitled to cross-examine witnesses, obtain witnesses or tangible evidence by compulsory process and
to introduce evidence on his behalf). See also I.C. § 31-34-9-7 (stating
that a childs parents are parties to the proceedings described in the juvenile
law and have all rights of parties under the Indiana Trial Rules).
Therefore, the CHINS petition is an integral part of ensuring that the parents
have notice of the allegations and an opportunity to contradict the OFCs evidence.
This is, in part, so because we have long recognized that parental
rights have constitutional dimension. See, e.g., Matter of Paternity of Baby Girl,
661 N.E.2d 873, 877 (Ind. Ct. App. 1996) (recognizing that the right to
raise a child is an essential and basic right).
However, any concerns with notice are addressed if the parties expressly or impliedly
consented to trial of the unpleaded issue under Indiana Trial Rule 15(B).
T.R. 15(B), which is applicable to CHINS proceedings,
See footnote provides that if issues not
raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been
raised in the pleadings. The purpose of subdivision (B) is to promote
relief for a party based upon the evidence actually introduced at trial, notwithstanding
the allegations set forth in the pleadings.
Curtis v. Clem, 689 N.E.2d
1261, 1264 (Ind. Ct. App. 1997). Notice may be express if raised
prior to or during trial, or implied, if the evidence presented at trial
places a reasonably competent attorney on notice that the issue was before the
court. K Mart Corporation v. Brzezinski, 540 N.E.2d 1276, 1281 (Ind. Ct.
App. 1989), rehg denied, trans. denied.
Our review of the record reveals that at no time did the OFC
expressly inform the Maybaums or the court that it intended to deviate from
the petition to show that P.M. was a CHINS because P.M.s physical or
mental health was seriously endangered due to an injury caused by Roberts
act or omission. Thus, the trial courts deviation was proper only if
the parties impliedly consented to the trial of Roberts failure to protect P.M.
We cannot find that consent occurred in this case.
Implied consent will not be found if the parties did not know or
could not have known that the unpleaded issue was being litigated. Id.
Thus, evidence which is relevant, not only to the unpleaded issue but
also to the issue set forth in the pleadings, will not necessary notify
a party that an unpleaded issue is being tried. Id.
Here, the OFC did not present any specific evidence which would have placed
the Maybaums attorney on notice that it was attempting to show that one
of P.M.s siblings or another person, not P.M.s father, caused P.M.s penetrating injury.
The OFC presented only two witnesses, Linda Airhart and P.M., to support
its case. At no time during P.M.s testimony did the OFC question
P.M. about anyone other than her father. During Airharts testimony, the OFC
again concentrated on the allegations P.M. made to Airhart about her father during
the course of Airharts investigation. Although at one point when the OFC
asked whether there were any other allegations which were made by P.M., Airhart
responded that P.M. informed her that there were allegations of sexual acting out
between the children, and that P.M. allegedly admitted that there had been some
acting out with [J.P.M., her brother,] Airhart did not further comment about the
specific acts, other than to say that there was an open investigation involving
the other kids. Record at 216. Even in its closing, the
OFC opined that P.M. was telling the truth when she stated that her
father had molested her. Record at 290.
Additionally, defense counsels decision to raise some questions concerning P.M.s possible sexual acts
with siblings and sexual aggressiveness did not show that the defense impliedly consented
to trial of P.M.s molestation by another. Dr. Pruett, who was called
to testify concerning Roberts alleged impotency, referred to a visit with P.M. in
June of 1997. During that visit, P.M. allegedly informed Dr. Pruett that
six months prior to the visit she and her brother J.P.M. had removed
their pants after which P.M. touched J.P.M.s private parts. Although Dr. Pruett
stated that he found P.M.s story incredible, he further testified that Susan, P.M.s
mother, and P.M.s older sister who had accompanied P.M. to the doctors office,
seemed to indicate that P.M.s story was true because they had caught [P.M.]
in several sexually aggressive acts and had caught [P.M.] doing fellatio on [J.P.M.].
Record at 253. Despite defense counsels decision to bring this testimony
before the court, it appears that counsels purpose was to prove that P.M.
was a sexually aggressive child and, therefore, someone other than the father, including
P.M., might have caused the penetrating injury.
Therefore, this testimony cannot be
considered special evidence which was not relevant to the issues already before the
court. Consequently, we conclude that neither party consented to litigate an issue
concerning an act of molestation by any person other than the father.
We do not disagree that a child may be adjudicated a CHINS if
a parent fails to prevent abusive treatment by one child against another.
See Matter of E.M., 581 N.E.2d 948, 955 (Ind. Ct. App. 1991), trans.
denied. Upon further investigation and hearing, the OFC may very well be
able to establish the parents have failed to protect P.M. from an injury
inflicted upon her by a sibling or another person. In fact, the
medical report, which shows evidence of penetrating injury, lends credence to that conclusion.
However, the fact remains that the OFC did not attempt to prove
that anyone other than P.M.s father molested her. Even in its findings
of fact, the juvenile court did not name who allegedly molested P.M.
Rather, the court found only that P.M. has been a victim of molestation.
Record at 80. Under these circumstances, the Maybaums attorney could not
have been aware that the OFC was proceeding under a different section of
the CHINS statute. Even the Maybaums attorneys closing statement suggests that after
all of the evidence was presented, he was still under the belief that
the only allegation against his client was that Robert allegedly molested P.M.See footnote
Record at 289.
While we certainly understand the trial courts sincere desire to obtain what might
eventually prove to be much-needed services for P.M., to permit the trial court
to base its decision upon a theory not set forth by the OFC
would contravene the purpose of the CHINS statutes, which specifically require the OFC
to provide a citation to the precise section of the CHINS statute and
the specific facts underlying the allegation. Further, when parents do not receive
notice of the specific allegations against them, they do not know what evidence
to present on their behalf, which evidence or witnesses to obtain by compulsory
process, or which questions to ask during cross-examination, rights explicitly granted under the
CHINS statute. As aptly noted by this court in Elkhart County Farm
Bureau Cooperative Assn, Inc. v. Hochstetler, 418 N.E.2d 280, 283 (Ind. Ct.
App. 1981), rehg denied:
This broad ability to amend the pleadings to conform to the evidence is,
however, not without its limitations. . . . [T]he purpose behind the rule
is to allow the parties some flexibility in litigating the case, and to
further justice by allowing the evidence brought forth at trial (to) determine the
parties liability. The basic text of fairness would indicate that a party
is entitled to some notice that an issue is before the court which
has not been pleaded or has not been agreed to in a pre-trial
order.. . . This is especially true where the new issue is not
unequivocally clear by the evidence being submitted. This is not being technical.
This is being fair. A party should be given the opportunity
to meet the issues which the court is considering.(citations omitted).
(quoting Bahre v. Metropolitan School District of Washington Township, 400 N.E.2d 197, 200
(Ind. Ct. App. 1980). In this case, the Maybaums were entitled to
notice that they were required to defend against a claim that they had
failed to protect the child. And they were entitled to specifics concerning
the acts and circumstances which they assertedly failed to protect against. Then,
if they had a defense, they might be prepared to present it.
Because we conclude that the Maybaums could not have known that the OFC
was proceeding under a different section of the CHINS statute, we need not
reach the Maybaums contention regarding the sufficiency of the evidence.
FRIEDLANDER, J., and DARDEN, J., concur.
I.C. § 31-34-11-1 (Unless the allegations of a petition have been
admitted, the juvenile court shall hold a factfinding hearing.).
See I.C. § 31-32-1-3 (noting that the Indiana Rules of Trial Procedure
apply in all matters not covered by the juvenile law).
We recognize that the juvenile court, in its findings of
fact, found that P.M. was the victim of molestation. Therefore, the court
must have concluded that someone other than P.M. or P.M.s father caused the
penetrating injury. However, defense counsel could have legitimately attempted to show that
P.M., as a sexually aggressive child, injured herself.
Specifically, defense counsel stated that Mr. Maybaum, did not
molest this child and theres not sufficient evidence to find that he did.
Record at 289.