In Re AC

905 N.E.2d 456, 2009 WL 1154010
CourtIndiana Court of Appeals
DecidedApril 28, 2009
Docket49A04-0810-JV-612
StatusPublished

This text of 905 N.E.2d 456 (In Re AC) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re AC, 905 N.E.2d 456, 2009 WL 1154010 (Ind. Ct. App. 2009).

Opinion

905 N.E.2d 456 (2009)

In the Matter of A.C., a Child in Need of Services,
M.C., Mother, Appellant-Respondent,
v.
Marion County Department Of Child Services, Appellee-Petitioner,
Child Advocates, Inc., Co-Appellee-Guardian Ad Litem.

No. 49A04-0810-JV-612.

Court of Appeals of Indiana.

April 28, 2009.

*458 Lilaberdia Batties, Batties & Associates, Indianapolis, IN, Attorneys for Appellant.

Julie Carter, Indiana Department of Child Services, Knox, IN, Inge Myriam Van Der Cruyssen, Child Advocates, Inc., Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

Appellant-respondent M.C. ("Mother") appeals the juvenile court's order declaring her minor child, A.C., to be a Child in Need of Services (CHINS). Mother argues that there was insufficient evidence to support the juvenile court's CHINS determination and portions of its parental participation decree ("participation decree"), pertaining to substance abuse services and paternity. Finding that there was sufficient evidence to support the CHINS adjudication and insufficient evidence to order Mother to submit to drug and alcohol assessment, random drug testing, substance abuse treatment, and to establish paternity, we affirm in part, reverse in part, and remand with instructions to the trial court to vacate portions of the participation decree.

FACTS

Mother is the biological mother of A.C., born on November 7, 2006. On August 2, 2007, a judgment of paternity and support was issued, in which C.D. ("Father") was determined to be A.C.'s father. Pursuant to this judgment, Mother was granted custody of A.C., with Father being granted visitation pursuant to the Indiana Parenting Time Guidelines.

According to the probable cause affidavit, on April 30, 2008, Monique Miller, a family case manager for the Marion County Department of Child Services ("DCS"), visited the home of Father and L.D. ("Stepmother"). Miller was there on a routine visit concerning another child belonging to Father and Stepmother. Father was living with his mother ("Grandmother") at the time because a pending charge of child molestation prevented him from having unsupervised contact with his children. When Miller visited the home, Father was participating in a supervised visit with his children at Stepmother's residence.

During the visit, Miller was introduced to A.C. Miller learned that A.C. was eighteen months old and had been dropped off to Father by Mother over thirty days prior to that day. Father took A.C. to live with Stepmother.

On May 9, 2008, Monica Patterson, a public health nurse with the Marion County Health Department, visited Stepmother's home regarding one of the other children. Patterson became concerned about A.C.'s developmental delays, such as her lack of speech and poor balance when walking. Patterson was also concerned with A.C.'s poor hygiene, lack of immunizations, and Mother's unknown whereabouts. Patterson informed Miller about her concerns.

On May 10, 2008, Miller stopped by Stepmother's residence. When Miller asked Stepmother about a doctor's appointment for A.C., Stepmother responded that A.C. had an appointment, but she could not recall the day or time. Stepmother informed Miller that there had been no contact with Mother. Miller noted *459 that A.C.'s overall appearance was poor, as evidenced by a foul odor, soiled cloths, and oily hair.

On May 16, 2009, Miller met with Patterson, Darcy Milner, a district social worker, and Cheryl Colver, a public health nurse, at Stepmother's residence. They discovered that A.C. still had not been given her immunizations. Stepmother had been informed by the Marion County Health Department that she would be unable to get A.C.'s immunizations without a birth certificate, and she could not get a birth certificate without Mother's presence. Stepmother explained that she did not know Mother's whereabouts. During the visit, Miller, Patterson, Milner, and Colver observed a foul odor coming from A.C.

Miller conferred with her supervisor about the conditions of Stepmother's home and A.C.'s appearance. It was decided that A.C. would be taken into custody, and the Indianapolis Metropolitan Police Department was called for assistance during the removal. A.C. was taken to Youth Emergency Services, where it was discovered that she had blisters caused by a severe diaper rash.

On May 19, 2008, Mother contacted DCS about A.C. Mother refused to provide any information regarding her address, phone number, or where she had been for the past several weeks when A.C. had been residing with Stepmother.

In its CHINS petition, the DCS alleged that A.C. was a CHINS because Mother "has abandoned the child and has not demonstrated the ability or willingness to parent the child at this time." Appellant's App. p. 19. Furthermore, the petition alleged that Father "has extensive history with DCS and a pending criminal case involving child molest of an older child." Id. Finally, DCS alleged that Stepmother had "failed to appropriately care for the child, obtain timely medical care, and was unable to adequately address the child's needs due to her lack of legal custody." Id.

On May 20, 2008, an initial hearing was held in which the juvenile court determined that there was sufficient evidence to support DCS's probable cause affidavit alleging that A.C. was a CHINS. In addition, the juvenile court concluded that no efforts were made to provide family services before removal because "an emergency nature precluded services," however, "[t]he efforts made to prevent removal of the child were reasonable." Id. at 34. Moreover, the juvenile court ordered that A.C. be a ward of DCS, but that the DCS would supervise visitation between the child and the parents.

On July 25, 2008, a factfinding hearing was held. Mother testified that four days before Easter, she took A.C. to Grandmother's house for a supervised visit with Father. On Easter, when Mother went to pick up A.C. at 4:00 p.m., A.C. was not there and Grandmother would not tell Mother where A.C. was or how to contact Father. Mother stated that she went to Father's residence, but no one was there. Mother further testified that she went to Father's residence on four different occasions, but was unsuccessful in locating him or A.C. In addition, Mother called Grandmother on four separate occasions, but she would not reveal Father's or A.C.'s location.

On August 22, 2008, the juvenile court entered findings of fact and conclusions of law, finding in relevant part:

8. [Mother's] whereabouts were unknown when the CHINS petition was filed.
9. [Mother] has missed the last three visits with the Child and has had only three or four visits with the Child in the *460 two month period since the CHINS was filed.
* * *
12. The public health nurses observed the child to be developmentally delayed; not walking as a child her age should and having poor language development and were concerned about her well being.
* * *
17. Once the child was placed in Ms. Doyan's care, the Child ate voraciously initially and was under weight [sic] at the 25th percentile and now the Child has gained weight and is at the 50th percentile for weight.
16. [sic] The child is receiving therapy through First Steps and is benefiting from these services.
* * *
19.

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Related

Parmeter v. Cass County Department of Child Services
878 N.E.2d 444 (Indiana Court of Appeals, 2007)
E.P. v. Marion County Office of Family & Children
653 N.E.2d 1026 (Indiana Court of Appeals, 1995)
Thomas v. Carlson
867 N.E.2d 167 (Indiana Court of Appeals, 2007)
M.C. v. Marion County Department of Child Services
905 N.E.2d 456 (Indiana Court of Appeals, 2009)

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Bluebook (online)
905 N.E.2d 456, 2009 WL 1154010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ac-indctapp-2009.