In re the Matter of J.M., J.T., & M.N. (Minor Children), Children in Need of Services, and S.L. (Mother) and S.N. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 20, 2019
• Docket: 19A-JC-802
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 20 2019, 7:02 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT S.L. ATTORNEYS FOR APPELLEE Marianne Woolbert Curtis T. Hill, Jr. Anderson, Indiana Attorney General ATTORNEY FOR APPELLANT S.N. David E. Corey Dorothy Ferguson Deputy Attorney General Anderson, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Matter of J.M., J.T., & December 20, 2019 M.N. (Minor Children), Court of Appeals Case No. Children in Need of Services, 19A-JC-802 and Appeal from the Madison Circuit S.L. (Mother) and S.N. (Father), Court The Honorable G. George Pancol, Appellants-Respondents, Judge v. The Honorable Jack Brinkman, Referee Indiana Department of Child Trial Court Cause Nos. Services, 48C02-1902-JC-7, -8, -9 Appellee-Petitioner

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 1 of 10 Case Summary [1] S.L. (“Mother”) appeals the trial court’s orders adjudicating her three children,

J.M., J.T., and M.N. (collectively “the Children”) children in need of services

(“CHINS”). S.N. (“Father”) appeals the CHINS adjudication with respect to

his child, M.N. 1 Both Mother and Father challenge the sufficiency of the

evidence to support the CHINS adjudications. Finding the evidence sufficient,

we affirm.

Facts and Procedural History [2] The facts most favorable to the CHINS adjudications are as follows. Around

3:00 p.m. on January 7, 2019, Elwood Police Department officers received a

report concerning a child stranded outside in the cold and rain on the front

porch of an Elwood home. Officers Jerry Branson and Will Nalluvac arrived at

the home and found seven-year-old J.M. holding onto the front door handle

and crying in distress. They determined his identity through information in his

bookbag. They called the resource officer at his school and ascertained that he

lived there. Meanwhile, they knocked repeatedly on the front door and on the

windows around the sides and back of the house, and Officer Branson heard a

loud slamming sound. Eventually, Mother came to the door in her pajamas.

She refused the officers’ request to enter the home, but when the officers learned

of an active search warrant for Father at Mother’s address, she allowed them to

1 J.M.’s and J.T.’s fathers are not participating in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 2 of 10 enter. Mother initially told them that there was no one else in the home, but

they heard a child’s cry and discovered two-year-old M.N., who had been

napping with Mother. The officers searched the home, and when they

descended some stairs through a trap door in the laundry room, they found

Father hiding in the crawl space portion of the cellar. Father had a small

quantity of methamphetamine in his pocket. At some point during the search,

sixteen-year-old J.T. came home from school and phoned Mother’s sister

(“Aunt”), saying, “I think they’re going to arrest Mom …. Please, please get

here.” Tr. Vol. 2 at 73.

[3] The officers arrested Father for methamphetamine possession and probation

violations and arrested Mother for aiding a criminal. One of the officers asked

Aunt to take the Children to her home. Police contacted the Indiana

Department of Child Services (“DCS”), and DCS Family Case Manager

(“FCM”) Andrea Dickerson went to Aunt’s home and assessed the situation.

Aunt indicated that she intended to bail out Mother from jail that night, and

FCM Dickerson became concerned that the Children would go back home with

Mother. Because Mother had a history with DCS that included a previous

CHINS case in which the toddler M.N. ingested Suboxone that she found in

Mother’s purse, and because illegal drugs had been found in Mother’s home

earlier that day, the Children were removed and put in a relative placement

with their maternal grandparents (“Grandparents”).

[4] The following day, the trial court conducted a detention hearing, and both

Mother and Father refused to submit to drug screens. DCS filed CHINS

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 3 of 10 petitions alleging that Mother had left J.M. outside in the cold and rain without

access to the house, that she had denied the officers entrance to her home and

had behaved erratically during the eventual search of her home, that she had

harbored Father in her home and had lied about his presence there, that Father

was discovered with methamphetamine on his person, that Mother had used

illegal substances including methamphetamine, and that Mother and Father

both were arrested and incarcerated as a result of the January 7 incident. Both

Mother and Father denied the CHINS allegations. During the pendency of the

CHINS proceedings, Father remained incarcerated due to the execution of his

previously suspended four-year sentence in an unrelated criminal case. Mother

did not participate in any services except supervised visitation, and she refused

to allow DCS inside her home to evaluate her living conditions. DCS referred

J.T. for older youth services and the Children for group therapy through the

Children’s Bureau.

[5] The trial court conducted a factfinding hearing, with Mother present and Father

present telephonically and by counsel. At the close of the hearing, the court

found the allegations in the CHINS petitions to be true and adjudicated the

Children as CHINS. The court ordered Mother to participate in services, allow

DCS into her home, and take steps to ensure the safety of her home. The court

advised Father to participate in whatever reasonable services are offered in the

Department of Correction and to use alternate means such as mail and Skype to

communicate with M.N. Mother appeals the CHINS adjudications as to all of

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 4 of 10 the Children, and Father appeals the CHINS adjudication as to M.N.

Additional facts will be provided as necessary.

Discussion and Decision [6] Mother challenges the sufficiency of the evidence supporting the CHINS

adjudications as to the Children, and Father challenges the sufficiency of the

evidence supporting the CHINS adjudication as to M.N. Appellate courts

generally grant latitude and deference to trial courts in family law matters.

Matter of E.K., 83 N.E.3d 1256, 1260 (Ind. Ct. App. 2017), trans. denied (2018).

This deference recognizes the trial court’s “unique ability to see the witnesses,

observe their demeanor, and scrutinize their testimony, as opposed to this

court’s only being able to review a cold transcript of the record.” Id. Thus,

when reviewing the sufficiency of evidence, we neither reweigh evidence nor

judge witness credibility; rather, we consider only the evidence and reasonable

inferences most favorable to the trial court’s decision. In re K.D., 962 N.E.2d

1249, 1253 (Ind. 2012).

[7] Here, none of the parties requested written findings of fact and conclusions

thereon pursuant to Indiana Trial Rule 52(A), and the trial court did not issue

findings sua sponte. Special findings are not required in a CHINS factfinding

order. In re S.D., 2 N.E.3d 1283, 1288 (Ind. 2014); see also Matter of N.C., 72

N.E.3d 519, 523 n.2 (Ind. Ct. App. 2017) (unlike dispositional order,

factfinding order is not required to include formal findings). Where the parties

do not request written findings and the trial court does not issue them sua

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 5 of 10 sponte, we apply a general judgment standard and may affirm the judgment if it

can be sustained on any legal theory supported by the evidence. S.D., 2 N.E.3d

at 1287; Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind. Ct. App. 2014).

[8] In a CHINS proceeding, DCS bears the burden of proving by a preponderance

of the evidence that a child meets the statutory definition of a CHINS. In re

N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing

CHINS status, DCS must prove that the child is under age eighteen,

(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.

Ind. Code § 31-34-1-1.

[9] Although the acts or omissions of one or both parents can cause a condition

that creates the need for court intervention, the CHINS designation focuses on

the condition of the children rather than on an act or omission of the parent(s).

N.E., 919 N.E.2d at 105. In other words, despite a “certain implication of

parental fault in many CHINS adjudications, the truth of the matter is that a

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 6 of 10 CHINS adjudication is simply that – a determination that a child is in need of

services.” Id. (citations omitted).

[10] Both parents claim that the evidence is insufficient to support the trial court’s

determination that (1) the Children are seriously endangered; and that (2) the

Children have unmet needs; (3) that are unlikely to be provided or accepted

without the court’s coercive intervention. Father’s argument pertains only to

his child, M.N.; Mother’s pertains to all the Children. Three-year-old M.N.

was previously adjudicated a CHINS after she ingested Suboxone that she

found in Mother’s purse. This evidence is relevant in the present case, as it has

implications concerning Mother’s ability to protect the Children from

dangerous situations. See Matter of Eq.W., 124 N.E.3d 1201, 1211 (Ind. 2019)

(“Past acts by parents can be relevant to new CHINS filings involving the same

parents and children.”). “[A] parent’s past, present, and future ability to

provide sufficient care for his or her child forms the basis of a CHINS

adjudication [and the] parent’s character is an integral part of assessing that

ability.” Id. at 1210 (quoting Matter of J.L.V., Jr., 667 N.E.2d 186, 190-91 (Ind.

Ct. App. 1996)). Mother cites her completion of services in (and the ultimate

closure of) the previous CHINS case as evidence that the Children are not

currently seriously endangered and that she no longer needs the court’s coercive

intervention to protect the Children and provide for their needs. We find the

record sufficient to support the court’s conclusion to the contrary.

[11] In addition to the most obvious examples of M.N. ingesting Suboxone and J.M.

being locked outside in the cold and rain, all three of the Children have been

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 7 of 10 seriously endangered by their exposure to Mother and Father’s lifestyle. The

record shows both Mother and Father to be drug users. It also shows their

relationship, whether currently romantic or not, to be a bonded one. For

example, police discovered that there was an active search warrant for Father, a

probationer, at Mother’s address. Mother lied to the officers as to both M.N.’s

presence and Father’s presence in the home. When the officers searched her

home, they found Father’s clothing and other belongings strewn about

Mother’s bedroom and in her closet and found cigarette butts in ashtrays on

both sides of the bed. They heard a loud slamming noise while outside on the

porch with the stranded J.M. and, not long after, found Father hiding in the

cellar crawl space accessed by a trap door. Father had a small quantity of

illegal drugs in his pocket. The pajama-clad Mother’s behavior with the officers

was reflective not merely of sleepiness, but it also led them to question whether

she might be under the influence. Tr. Vol. 2 at 19. Officer Nalluvac described

her demeanor as going back and forth from cooperative to yelling and cursing.

Id. at 30.

[12] Mother claimed that she did not leave the Children’s needs unmet because,

when she knew she would be arrested, she called Aunt for help with the

Children. However, Aunt testified that it was actually J.T. who called her for

help, and that it was one of the officers who asked her to take the Children to

her house. Id. at 72-73, 76.

[13] Father and Mother both claim that Mother did not knowingly harbor Father in

her cellar but that he had accessed the house through a broken and boarded

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 8 of 10 window in the back of the home. We decline their invitations to reweigh

evidence. That said, even the accounts offered by Father and Mother do not

reflect well on Father who, by his own account, essentially admitted to breaking

and entering Mother’s home. Nor do they reflect well on Mother’s ability to

keep the Children safe; she was aware that the broken window had been

covered by a board for four years, yet, she described her neighborhood as rough

and explained that break-ins to her vehicle and garage had precipitated her

purchase of a surveillance camera. The trial court referenced surveillance tape

footage introduced by Mother at the hearing and remarked about Mother’s

apparent lack of concern about seven-year-old J.M.’s having been locked

outside in January weather for fifteen to twenty minutes. See id. at 84 (“That

[video] gave me a clear idea of what was going on here…. You didn’t seem

concerned as a mother that [J.M.] was out there with police officers and the

safety and welfare of [J.M.].”). 2

[14] Both Father and Mother characterize the events of January 7 as an isolated

incident concerning only J.M. and not indicative of their daily living. Again,

we decline their invitations to reweigh evidence. We also reject their argument

that the incident has no implications concerning M.N. and J.T., who were

members of a household where drugs were found and a criminal/probation

violator was harbored and were present for part or all of the January 7 incident.

2 The surveillance video is not included in the record on appeal. Nor is Mother’s exhibit concerning a safety plan that she allegedly made with Aunt.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 9 of 10 [15] Moreover, even after the January 7 incident, the following occurred: both

Mother and Father refused to submit to drug screens at the detention hearing;

Father remained incarcerated and is scheduled to execute at least two years of

his previously suspended sentence; Mother refused to participate in any services

other than supervised visitation; and Mother refused to allow DCS inside her

home for an evaluation. These repeated refusals underscore the need for the

court’s coercive intervention. These are precisely the types of circumstances

that the CHINS statutes were designed to address.

[16] The evidence is sufficient to support the CHINS adjudications as to all three of

the Children. Accordingly, we affirm.

[17] Affirmed.

Baker, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-802 | December 20, 2019 Page 10 of 10