Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any May 28 2013, 9:29 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
AMY KAROZOS PATRICK M. RHODES Greenwood, Indiana DCS Marion County Local Office Indianapolis, Indiana
ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF: ) D.H. and D.H., ) CHILDREN IN NEED OF SERVICES, ) ) D.H. (Father), ) ) Appellant-Respondent, ) ) vs. ) No. 49A02-1210-JC-827 ) MARION COUNTY DEPARTMENT OF ) CHILD SERVICES, ) ) AND ) ) CHILD ADVOCATES, INC., ) ) Appellee-Guardian Ad Litem. ) )
APPEAL FROM THE MARION SUPERIOR COURT – JUVENILE DIVISION The Honorable Marilyn A. Moores, Judge The Honorable Danielle Gaughan, Magistrate Causes Nos. 49D09-1206-JC-22703 & 49D09-1206-JC-22704 May 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Father appeals the trial court’s determination that his sons, D.L.H. and D.H., are
children in need of services (“CHINS”). Father argues there is insufficient evidence to
support the trial court’s CHINS determination. Because we conclude that there is
sufficient evidence to support the adjudication, we affirm.
Facts and Procedural History
Father has two sons, D.L.H., born August 30, 2004, and D.H., born February 2,
2007.1 Both children have asthma. DCS first became involved with the family in 2008
because the children were not getting medical care for their asthma. In an effort to ensure
that they would get regular medical care, the children were enrolled in Riley Hospital for
Children’s high-risk asthma clinic. In May 2012, DCS received a report that the parents
were not bringing the children to their clinic appointments. A DCS family case manager,
Eric Woods, met with the parents to discuss the children’s medical care.
Mother told FCM Woods that the children had not been to the clinic because she
had transportation problems.2 Mother admitted, however, that she knew she could get
free transportation to the clinic through the Medicaid cab program, but she did not take
advantage of the program. Mother also indicated that she was having substance-abuse
1 We refer to the children as D.L.H. and D.H. due to their similarly spelled names. 2 We discuss Mother only as necessary to explain this case’s progression; Mother does not participate in this appeal. 2 problems, she and Father had recently separated, and Father was the family’s only source
of income. FCM Woods also spoke to Father, who indicated that he had recently been
hospitalized in Georgia and during that time, he could not take the children to their clinic
appointments.
In June 2012, due to the parents’ ongoing failure to provide medical care for
D.L.H. and D.H., DCS filed a CHINS petition for both children. At an initial hearing, the
parents denied the allegations in the CHINS petition. The trial court allowed the children
to remain in their parents’ care, but it ordered Mother and Father to ensure the children
attended all their clinic appointments and also to participate in home-based therapy, case-
management services, and random drug screens. An evidentiary hearing on the CHINS
petition was scheduled for September 4, 2012. Although neither parent attended the
hearing, both were represented by counsel.
At the hearing, DCS established the parents’ failure to ensure that the children
received medical care as well as Father’s refusal to participate in services. A social
worker from Riley Hospital, Erin McKalips, testified that as clinic participants, D.L.H.
and D.H. were supposed to be seen by a clinic doctor every six to eight weeks and
required daily medication. Tr. p. 21. The children had been accepted into the clinic
because they qualified as high-risk patients due to their “chaotic living environment.” Id.
at 24. Chaotic, in this case, meant:
In the matter of a year, [F]ather presented to the clinic, missing medications because of two house fires, or kitchen fires. A third time because someone came into the home and stole the [children’s] medications. And he also reported they’ve had to move a couple times because of mold in the home and at one point, there was a report filed for domestic violence at bedside,
3 while a patient at Methodist Hospital. So there [are] just concerns that multiple cris[e]s, events happened in . . . their lives.
Id. McKalips also expressed concern about her most recent interaction with Father,
during which he was “falling asleep in the exam room during conversation” and slurring
his words. Id. McKalips went on to summarize the parents’ compliance with clinic
requirements in the past two years, saying that both children missed a number of
scheduled appointments. D.H., specifically, had nineteen clinic appointments scheduled,
but his parents brought him to only seven. Id. at 34. Before his most recent appointment,
D.H. had been absent from the clinic for ten months. Id. at 34-35. McKalips also said
that the parents failed to fill the children’s prescriptions in July, noting that the parents
told her they filled prescriptions at CVS and that she had called CVS to confirm that the
prescriptions were not filled. Id. at 39-40. She said the parents had filled the children’s
prescriptions for the month of August, however.
DCS FCM Elizabeth Plew, who made therapy and drug-screen referrals for the
family after the initial hearing, testified that Father had refused to take random drug
screens and to participate in home-based services. Id. at 47. FCM Plew also had
concerns about the children’s medical care, noting that D.H.’s asthma had led to him
being “admitted four times to the ICU and then [he] had three additional trips to the ER
just this year.” Id. at 46. After the hearing, the trial court determined that D.L.H. and
D.H. were CHINS. Father now appeals.
4 Discussion and Decision
On appeal, Father argues that there is insufficient evidence to support the trial
court’s determination that his sons are CHINS. The CHINS petition was based on
Indiana Code section 31-34-1-1, which provides:
A child is a child in need of services if before the child becomes eighteen (18) years of age:
(1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.
“Because a CHINS proceeding is a civil action, the State must prove by a preponderance
of the evidence that a child is a CHINS as defined by the juvenile code.” In re N.E., 919
N.E.2d 102, 105 (Ind. 2010). When the trial court’s judgment includes findings of fact
and conclusions of law, we apply a two-tiered standard of review and may not set aside
the findings or judgment unless they are clearly erroneous. In re A.C., 905 N.E.2d 456,
461 (citing Parmeter v. Cass Cnty. Dept. of Child Servs., 878 N.E.2d 444, 450 (Ind. Ct.
App. 2007)).
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any May 28 2013, 9:29 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
AMY KAROZOS PATRICK M. RHODES Greenwood, Indiana DCS Marion County Local Office Indianapolis, Indiana
ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF: ) D.H. and D.H., ) CHILDREN IN NEED OF SERVICES, ) ) D.H. (Father), ) ) Appellant-Respondent, ) ) vs. ) No. 49A02-1210-JC-827 ) MARION COUNTY DEPARTMENT OF ) CHILD SERVICES, ) ) AND ) ) CHILD ADVOCATES, INC., ) ) Appellee-Guardian Ad Litem. ) )
APPEAL FROM THE MARION SUPERIOR COURT – JUVENILE DIVISION The Honorable Marilyn A. Moores, Judge The Honorable Danielle Gaughan, Magistrate Causes Nos. 49D09-1206-JC-22703 & 49D09-1206-JC-22704 May 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Father appeals the trial court’s determination that his sons, D.L.H. and D.H., are
children in need of services (“CHINS”). Father argues there is insufficient evidence to
support the trial court’s CHINS determination. Because we conclude that there is
sufficient evidence to support the adjudication, we affirm.
Facts and Procedural History
Father has two sons, D.L.H., born August 30, 2004, and D.H., born February 2,
2007.1 Both children have asthma. DCS first became involved with the family in 2008
because the children were not getting medical care for their asthma. In an effort to ensure
that they would get regular medical care, the children were enrolled in Riley Hospital for
Children’s high-risk asthma clinic. In May 2012, DCS received a report that the parents
were not bringing the children to their clinic appointments. A DCS family case manager,
Eric Woods, met with the parents to discuss the children’s medical care.
Mother told FCM Woods that the children had not been to the clinic because she
had transportation problems.2 Mother admitted, however, that she knew she could get
free transportation to the clinic through the Medicaid cab program, but she did not take
advantage of the program. Mother also indicated that she was having substance-abuse
1 We refer to the children as D.L.H. and D.H. due to their similarly spelled names. 2 We discuss Mother only as necessary to explain this case’s progression; Mother does not participate in this appeal. 2 problems, she and Father had recently separated, and Father was the family’s only source
of income. FCM Woods also spoke to Father, who indicated that he had recently been
hospitalized in Georgia and during that time, he could not take the children to their clinic
appointments.
In June 2012, due to the parents’ ongoing failure to provide medical care for
D.L.H. and D.H., DCS filed a CHINS petition for both children. At an initial hearing, the
parents denied the allegations in the CHINS petition. The trial court allowed the children
to remain in their parents’ care, but it ordered Mother and Father to ensure the children
attended all their clinic appointments and also to participate in home-based therapy, case-
management services, and random drug screens. An evidentiary hearing on the CHINS
petition was scheduled for September 4, 2012. Although neither parent attended the
hearing, both were represented by counsel.
At the hearing, DCS established the parents’ failure to ensure that the children
received medical care as well as Father’s refusal to participate in services. A social
worker from Riley Hospital, Erin McKalips, testified that as clinic participants, D.L.H.
and D.H. were supposed to be seen by a clinic doctor every six to eight weeks and
required daily medication. Tr. p. 21. The children had been accepted into the clinic
because they qualified as high-risk patients due to their “chaotic living environment.” Id.
at 24. Chaotic, in this case, meant:
In the matter of a year, [F]ather presented to the clinic, missing medications because of two house fires, or kitchen fires. A third time because someone came into the home and stole the [children’s] medications. And he also reported they’ve had to move a couple times because of mold in the home and at one point, there was a report filed for domestic violence at bedside,
3 while a patient at Methodist Hospital. So there [are] just concerns that multiple cris[e]s, events happened in . . . their lives.
Id. McKalips also expressed concern about her most recent interaction with Father,
during which he was “falling asleep in the exam room during conversation” and slurring
his words. Id. McKalips went on to summarize the parents’ compliance with clinic
requirements in the past two years, saying that both children missed a number of
scheduled appointments. D.H., specifically, had nineteen clinic appointments scheduled,
but his parents brought him to only seven. Id. at 34. Before his most recent appointment,
D.H. had been absent from the clinic for ten months. Id. at 34-35. McKalips also said
that the parents failed to fill the children’s prescriptions in July, noting that the parents
told her they filled prescriptions at CVS and that she had called CVS to confirm that the
prescriptions were not filled. Id. at 39-40. She said the parents had filled the children’s
prescriptions for the month of August, however.
DCS FCM Elizabeth Plew, who made therapy and drug-screen referrals for the
family after the initial hearing, testified that Father had refused to take random drug
screens and to participate in home-based services. Id. at 47. FCM Plew also had
concerns about the children’s medical care, noting that D.H.’s asthma had led to him
being “admitted four times to the ICU and then [he] had three additional trips to the ER
just this year.” Id. at 46. After the hearing, the trial court determined that D.L.H. and
D.H. were CHINS. Father now appeals.
4 Discussion and Decision
On appeal, Father argues that there is insufficient evidence to support the trial
court’s determination that his sons are CHINS. The CHINS petition was based on
Indiana Code section 31-34-1-1, which provides:
A child is a child in need of services if before the child becomes eighteen (18) years of age:
(1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.
“Because a CHINS proceeding is a civil action, the State must prove by a preponderance
of the evidence that a child is a CHINS as defined by the juvenile code.” In re N.E., 919
N.E.2d 102, 105 (Ind. 2010). When the trial court’s judgment includes findings of fact
and conclusions of law, we apply a two-tiered standard of review and may not set aside
the findings or judgment unless they are clearly erroneous. In re A.C., 905 N.E.2d 456,
461 (citing Parmeter v. Cass Cnty. Dept. of Child Servs., 878 N.E.2d 444, 450 (Ind. Ct.
App. 2007)). We first consider whether the evidence supports the factual findings and
then whether the findings support the judgment. Id. Findings are clearly erroneous when
the record contains no facts to support them either directly or by inference, and a
judgment is clearly erroneous if it relies on an incorrect legal standard. Id. We give due
5 regard to the trial court’s ability to assess witness credibility and will not reweigh
evidence. Id. Rather, we consider the evidence most favorable to the judgment with all
reasonable inferences drawn in favor of the judgment. Id.
Father claims there is insufficient evidence in the record to support the trial court’s
determination that the children are CHINS. We disagree. Both children have severe
asthma and due to their parents’ failure to provide them with medical care in the past,
they are enrolled in a clinic for high-risk asthma sufferers. Father knew the children
required clinic check-ups every six to eight weeks as well as daily medication.3
Nonetheless, a social worker from Riley testified that the parents were not bringing the
children to their regularly scheduled clinic appointments—D.H., specifically, attended
only seven of his last nineteen scheduled doctor’s appointments and had recently gone
ten months without being brought into the clinic. The parents also failed to fill the
children’s prescriptions in the month of July. And Father’s younger son D.H., had not
fared well in the months leading up to the hearing: FCM Plew testified that D.H. had
been “admitted four times to the ICU and then [he] had three additional trips to the ER
just this year.” 4 Tr. p. 46. Father argues that after the CHINS filing, the children had
attended one scheduled doctor’s appointment, and at the time of the hearing, were current
on their medication. But this short period of compliance with the children’s medical
3 In its order formally adjudicating the children CHINS, the trial court noted that Father was not familiar with the medications the children were prescribed. Appellant’s App. p. 89. Father argues that this fact alone cannot support a CHINS finding. Appellant’s Br. p. 13. But Father’s familiarity with the children’s medications, or lack thereof, is just one factor that the trial court considered. And the evidence as a whole supports the trial court’s conclusion that the children are CHINS. 4 Father claims that DCS did not prove that his actions directly caused these hospitalizations. Appellant’s Br. p. 12. But DCS need not do so; DCS must only prove that the children are impaired or endangered and that they need care they are not currently receiving. DCS has done so here. 6 plans is dwarfed by the parents’ history of noncompliance, which stems back to 2008 and
most recently caused D.H. to be absent from the clinic for nearly a year. We conclude
that the trial court properly determined that D.L.H. and D.H. are CHINS because they are
seriously endangered by Father’s inability to provide them with the medical care they
require and proper care is unlikely to be provided without the coercive intervention of the
court.
Father’s remaining arguments on appeal, particularly his claims regarding his
demeanor at the clinic and the possibility that he previously filled the children’s
prescriptions at an unknown pharmacy, amount to an invitation to reweigh the evidence,
which we will not do. The CHINS statute does not require that a court wait until
a tragedy occurs to intervene. See Roark v. Roark, 551 N.E.2d 865, 872 (Ind. Ct. App.
1990). Rather, a child is a CHINS when he is endangered by parental action or inaction.
Id. The trial court properly determined that was the case here.
Affirmed.
KIRSCH, J., and PYLE, J., concur.