MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 09 2018, 6:49 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy Karozos Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana
Kyle Hunter Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Matter of: M.G., May 9, 2018 Child in Need of Services Court of Appeals Case No. 49A04-1711-JC-2657 K.H. (Mother) Appeal from the Marion Superior Appellant-Respondent, Court, Juvenile Division v. The Honorable Marilyn Moores, Judge Indiana Department of Child The Honorable Danielle Gaughan, Services Magistrate Trial Court Cause No. and 49D09-1705-JC-1736 Child Advocates, Inc., Appellees-Petitioners
Altice, Judge. Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 1 of 9 Case Summary
[1] M.G. (Child) was adjudicated a Child in Need of Services (CHINS) by the
Marion Superior Court. K.H. (Mother) appeals, arguing that the Department
of Child Services (DCS) did not present sufficient evidence to support the trial
court’s CHINS determination.
[2] We affirm.
Facts & Procedural History1
[3] Child was born on August 26, 2016, to Mother and J.G. (Father). Father also
has two children with A.L.: Le.G., born December 29, 2014, and Lu.G., born
February 17, 2016. Mother, Father, A.L., and the three young children were
living together in an apartment.
[4] Alicia Fry, a permanency case manager with DCS, became involved with
Mother in December 2016. At the time, the case was classified as an informal
adjustment due to the fact that Child tested positive for THC through his
umbilical cord and Mother admitted to using marijuana during her pregnancy.
As part of an assessment, Mother revealed that she was not getting mental
health treatment although she claimed she had been diagnosed with bi-polar
disorder, ADHD, split personality tendencies, and depression. Mother
admitted that Child is afraid of her. She also informed Fry that she would put
1 Father does not appeal the CHINS determination. We therefore set forth the facts as pertinent to Mother.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 2 of 9 food on the carpet to keep Child busy while she and Father were “back in the
room having alone time,” and that she would give Tylenol to Child to calm him
down. Transcript at 66.
[5] Fry visited Mother’s apartment and noted an abundance of clutter, a mattress
on the floor, old food on the carpet, and “things you wouldn’t normally find
inside the apartment like a tire sitting against the wall.” Id. at 67. Fry was
aware that Mother and Father fought regularly and to such an extent that they
had been threatened with eviction. Fry believed Mother needed services to
ensure the safety and well-being of Child. She recommended homebased
therapy, homebased case work, domestic violence training, mental health and
substance abuse assessments, and that Mother follow all recommendations of
those assessments.
[6] On May 25, 2017, Mother and Father got into a verbal argument, which turned
physical when Mother hit Father “several times.” Id. at 29. Father retrieved a
handgun, pointed it at Mother, and threatened to shoot her. Father then
pointed the gun at himself and threatened to commit suicide. A.L. and all three
children were present and witnessed the incident.
[7] IMPD Officer Theodore Cragen was dispatched to the apartment. Officer
Cragen interviewed Mother and she told him what had happened. Mother also
admitted to having mental health problems and admitted to considering suicide
every day. Officer Cragen had the opportunity to see the inside of the
apartment, which he described as cluttered. He saw on an end table, in plain
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 3 of 9 view, a pipe used for smoking narcotics. He also confiscated a part of the
firearm Father had pointed at Mother,2 a BB gun, and two swords. Ultimately,
Officer Cragen arrested Mother for battery and domestic battery, Father for
pointing a firearm, battery, and domestic battery, and A.L. on an active arrest
warrant for battery.
[8] Given the situation, the Marion County DCS was contacted. Kwanza
Johnson, a family case manager (FCM) with DCS arrived at the scene. FCM
Johnson spoke with Father who was in the back seat of a police vehicle. Father
told her about the fight and explained that he was “stressed out and tired of it,”
so he went to the bedroom and retrieved the gun. Id. at 48. FCM Johnson also
spoke with Mother before she was transported to jail and Mother told her that
she “was tired of dealing with DCS.” Id. at 49. FCM Johnson then went to the
second-floor apartment. As she approached, she noted a distinct marijuana
smell coming down the stairwell. Inside the apartment, she observed a mattress
up against the wall as well as a pack and play and various baby items. There
was a wet spot on the floor and Child was soaked from his shoulders to his feet
perhaps from something that had spilled. FCM Johnson took Child and placed
him in kinship care.3
2 After the incident with Mother, but before police arrived, Father dismantled the firearm and his mother took parts of it to her house. 3 FCM Johnson also took A.L.’s two children into DCS care. A.L. later admitted that her two children were CHINS and that coercive intervention of the court was necessary to obtain and maintain a safe and appropriate home.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 4 of 9 [9] On May 29, 2017, DCS filed a CHINS petition. A fact-finding hearing was
held on August 29 and September 26, 2017. Thereafter, the court entered an
order finding Child was a CHINS. A dispositional hearing was held on
October 24, 2017, and the court entered a parental participation order the same
day. Mother now appeals. Additional facts will be provided as necessary.
Discussion & Decision
[10] CHINS proceedings are civil actions, and therefore, “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). On review, we
neither reweigh the evidence nor judge the credibility of the witnesses. Id. We
consider only the evidence that supports the juvenile court’s decision and
reasonable inferences drawn therefrom. Id. We reverse only upon a showing
that the decision of the juvenile court was clearly erroneous. Id.
[11] Where the trial court issues findings of fact and conclusions thereon, we apply a
two-tiered standard of review. In re R.P., 949 N.E.2d 395, 400 (Ind. Ct. App.
2011). We consider first whether the evidence supports the findings and then
whether the findings support the judgment. Id. We will set aside the trial
court’s findings and conclusions only if they are clearly erroneous and a review
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 09 2018, 6:49 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy Karozos Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana
Kyle Hunter Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Matter of: M.G., May 9, 2018 Child in Need of Services Court of Appeals Case No. 49A04-1711-JC-2657 K.H. (Mother) Appeal from the Marion Superior Appellant-Respondent, Court, Juvenile Division v. The Honorable Marilyn Moores, Judge Indiana Department of Child The Honorable Danielle Gaughan, Services Magistrate Trial Court Cause No. and 49D09-1705-JC-1736 Child Advocates, Inc., Appellees-Petitioners
Altice, Judge. Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 1 of 9 Case Summary
[1] M.G. (Child) was adjudicated a Child in Need of Services (CHINS) by the
Marion Superior Court. K.H. (Mother) appeals, arguing that the Department
of Child Services (DCS) did not present sufficient evidence to support the trial
court’s CHINS determination.
[2] We affirm.
Facts & Procedural History1
[3] Child was born on August 26, 2016, to Mother and J.G. (Father). Father also
has two children with A.L.: Le.G., born December 29, 2014, and Lu.G., born
February 17, 2016. Mother, Father, A.L., and the three young children were
living together in an apartment.
[4] Alicia Fry, a permanency case manager with DCS, became involved with
Mother in December 2016. At the time, the case was classified as an informal
adjustment due to the fact that Child tested positive for THC through his
umbilical cord and Mother admitted to using marijuana during her pregnancy.
As part of an assessment, Mother revealed that she was not getting mental
health treatment although she claimed she had been diagnosed with bi-polar
disorder, ADHD, split personality tendencies, and depression. Mother
admitted that Child is afraid of her. She also informed Fry that she would put
1 Father does not appeal the CHINS determination. We therefore set forth the facts as pertinent to Mother.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 2 of 9 food on the carpet to keep Child busy while she and Father were “back in the
room having alone time,” and that she would give Tylenol to Child to calm him
down. Transcript at 66.
[5] Fry visited Mother’s apartment and noted an abundance of clutter, a mattress
on the floor, old food on the carpet, and “things you wouldn’t normally find
inside the apartment like a tire sitting against the wall.” Id. at 67. Fry was
aware that Mother and Father fought regularly and to such an extent that they
had been threatened with eviction. Fry believed Mother needed services to
ensure the safety and well-being of Child. She recommended homebased
therapy, homebased case work, domestic violence training, mental health and
substance abuse assessments, and that Mother follow all recommendations of
those assessments.
[6] On May 25, 2017, Mother and Father got into a verbal argument, which turned
physical when Mother hit Father “several times.” Id. at 29. Father retrieved a
handgun, pointed it at Mother, and threatened to shoot her. Father then
pointed the gun at himself and threatened to commit suicide. A.L. and all three
children were present and witnessed the incident.
[7] IMPD Officer Theodore Cragen was dispatched to the apartment. Officer
Cragen interviewed Mother and she told him what had happened. Mother also
admitted to having mental health problems and admitted to considering suicide
every day. Officer Cragen had the opportunity to see the inside of the
apartment, which he described as cluttered. He saw on an end table, in plain
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 3 of 9 view, a pipe used for smoking narcotics. He also confiscated a part of the
firearm Father had pointed at Mother,2 a BB gun, and two swords. Ultimately,
Officer Cragen arrested Mother for battery and domestic battery, Father for
pointing a firearm, battery, and domestic battery, and A.L. on an active arrest
warrant for battery.
[8] Given the situation, the Marion County DCS was contacted. Kwanza
Johnson, a family case manager (FCM) with DCS arrived at the scene. FCM
Johnson spoke with Father who was in the back seat of a police vehicle. Father
told her about the fight and explained that he was “stressed out and tired of it,”
so he went to the bedroom and retrieved the gun. Id. at 48. FCM Johnson also
spoke with Mother before she was transported to jail and Mother told her that
she “was tired of dealing with DCS.” Id. at 49. FCM Johnson then went to the
second-floor apartment. As she approached, she noted a distinct marijuana
smell coming down the stairwell. Inside the apartment, she observed a mattress
up against the wall as well as a pack and play and various baby items. There
was a wet spot on the floor and Child was soaked from his shoulders to his feet
perhaps from something that had spilled. FCM Johnson took Child and placed
him in kinship care.3
2 After the incident with Mother, but before police arrived, Father dismantled the firearm and his mother took parts of it to her house. 3 FCM Johnson also took A.L.’s two children into DCS care. A.L. later admitted that her two children were CHINS and that coercive intervention of the court was necessary to obtain and maintain a safe and appropriate home.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 4 of 9 [9] On May 29, 2017, DCS filed a CHINS petition. A fact-finding hearing was
held on August 29 and September 26, 2017. Thereafter, the court entered an
order finding Child was a CHINS. A dispositional hearing was held on
October 24, 2017, and the court entered a parental participation order the same
day. Mother now appeals. Additional facts will be provided as necessary.
Discussion & Decision
[10] CHINS proceedings are civil actions, and therefore, “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). On review, we
neither reweigh the evidence nor judge the credibility of the witnesses. Id. We
consider only the evidence that supports the juvenile court’s decision and
reasonable inferences drawn therefrom. Id. We reverse only upon a showing
that the decision of the juvenile court was clearly erroneous. Id.
[11] Where the trial court issues findings of fact and conclusions thereon, we apply a
two-tiered standard of review. In re R.P., 949 N.E.2d 395, 400 (Ind. Ct. App.
2011). We consider first whether the evidence supports the findings and then
whether the findings support the judgment. Id. We will set aside the trial
court’s findings and conclusions only if they are clearly erroneous and a review
of the record leaves us firmly convinced that a mistake has been made. Id.
“Findings are clearly erroneous only when the record contains no evidence to
support them either directly or by inference.” K.B. v. Ind. Dep’t of Child Servs., 24
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 5 of 9 N.E.3d 997, 1001-02 (Ind. Ct. App. 2015) (citation omitted). “A judgment is
clearly erroneous if it relies on an incorrect legal standard.” Id. at 1002.
[12] To meet its burden of establishing CHINS status, DCS must prove that the
child is under eighteen 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.
Ind. Code § 31-34-1-1. 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 child rather than on an act or
omission of the parents. In re N.E., 919 N.E.2d at 105. “[T]he purpose of a
CHINS adjudication is to protect children, not punish parents.” N.L. v. Ind.
Dep’t of Child Servs., 919 N.E.2d 102, 106 (Ind. 2010).
[13] Mother first argues that DCS did not prove that domestic violence is an
ongoing issue that poses a risk to Child. Mother’s argument in this regard is
based solely on the fact that the criminal charges filed against her had been
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 6 of 9 dismissed prior to the CHINS fact-finding hearing. She asserts that the CHINS
adjudication “may not be based solely on conditions that no longer exist.”
Appellant’s Brief at 13 (citing In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App.
2013)).
[14] Contrary to Mother’s argument, the dismissal of criminal charges does not in
and of itself alleviate the concern for Child’s well-being. DCS presented
evidence that domestic violence in the home was ongoing and that it was to
such an extent that Mother and Father were threatened with eviction.
Although the charges against Mother were dropped, such does not change the
fact that Mother and Father fight on a regular basis. With regard to the most
recent altercation, Mother and Father fought in front of Child and the other
minor children. Mother instigated the physical altercation by hitting Father
several times. The fight escalated to the point where Father retrieved a
handgun and threatened to shoot Mother before pointing the gun at himself and
threatening to shoot himself. DCS established by a preponderance of the
evidence that domestic violence issues within the home pose a risk to Child’s
well-being.
[15] Mother also argues that DCS failed to prove that her mental health posed an
ongoing risk to Child. Mother asserts that her mental health was not a basis for
the CHINS petition and that even if it was, DCS presented no evidence as to
her mental health except for her own statements that she had been diagnosed
with bi-polar disorder, ADHD, split personality tendencies, and depression.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 7 of 9 [16] While the domestic violence incident renewed DCS’s involvement with
Mother, DCS alleged that Child was a CHINS in part because Mother failed to
provide Child with a safe, stable, and appropriate living environment by
receiving proper mental health care. As Mother herself observes, she made
statements to DCS indicating that she had previously been diagnosed with
mental health issues. When an officer responded to this most-recent domestic
violence incident, Mother told the officer that she contemplates suicide every
day. This evidence is sufficient to support the finding that Mother’s mental
health posed an ongoing risk to Child.
[17] Finally, Mother argues that DCS did not establish that coercive intervention of
the court was needed. Mother asserts that the fact that she did not participate
in services prior to the CHINS determination cannot be the basis for the
CHINS determination because DCS failed to establish that such services were
needed for Child’s well-being.
[18] DCS recommended that Mother engage in homebased therapy, homebased
case work, domestic violence training, mental health and substance abuse
assessments, and that Mother follow all recommendations of those assessments.
DCS related each of the requested services to the facts of the situation before it.
Specifically, domestic violence training was needed to address the ongoing
domestic violence between Mother and Father, and especially the most recent
escalation thereof. Mother’s own statements to DCS as to her mental health
diagnoses as well as her statement to police that she contemplates suicide every
day supports the request for a mental health assessment. Mother’s behaviors,
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 8 of 9 including giving Child Tylenol to calm him down or leaving food on the floor
to keep Child occupied, demonstrate the need for homebased therapy and
homebased case work. Prior to the CHINS determination, Mother refused to
participate in such services because she felt they were unnecessary. DCS has
established the need for the services and that coercive intervention of the court
was necessary to secure Mother’s compliance with the requested services.
[19] In sum, our review of the record leads us to conclude that the evidence
sufficiently supports the court’s findings, and those findings support the court’s
CHINS determination.
Judgment affirmed.
Najam, J. and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018 Page 9 of 9