In Re The Matter of: My.B. and M.Q., Children in Need of Services, M.B. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2019
• Docket: 18A-JC-2159
• 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 Feb 28 2019, 10:27 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 Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re The Matter of: February 28, 2019 My.B. and M.Q., Court of Appeals Case No. Children in Need of Services 18A-JC-2159 M.B. (Father), Appeal from the Marion Superior Court Appellant-Defendant, The Honorable Marilyn A. v. Moores, Judge The Honorable Rosanne Ang, Indiana Department of Child Magistrate Services, Trial Court Cause Nos. 49D09-1803-JC-714 Appellee-Plaintiff. 49D09-1803-JC-715

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 1 of 10 [1] M.B. (“Father”) appeals the trial court’s order determining that M.Q. and

My.B. (the “Children”) are children in need of services (“CHINS”). Father

raises one issue which we revise and restate as whether the evidence is sufficient

to support the court’s determination. We affirm.

Facts and Procedural History

[2] Father and K.A. (“Mother”) have two children together, M.Q. who was born in

April 2008 and My.B. who was born in October 2009. Father and Mother were

divorced in March 2012. The court approved an agreement that Father and

Mother share joint legal custody of the Children, Mother have physical

custody, and Father have parenting time pursuant to the Indiana Parenting

Time Guidelines. In March 2012, a CHINS action was filed after Mother’s

third child was born with THC and cocaine in her system. 1 In July 2017,

Mother, her children, and M.A. came to the attention of the Department of

Child Services (“DCS”) based on a report of neglect which alleged that Mother

and M.A. were involved in an accident with all of the children.

[3] On March 13, 2018, DCS filed a petition alleging that the Children and

Mother’s other children were CHINS. The petition alleged that Mother failed

to provide her children with a safe, sanitary, and appropriate living

environment free from substance abuse; that, on March 11, 2018, family case

1 The court’s CHINS determination order in this case indicates Mother has five children, Father is the father of the Children, and M.A. is the father of the other children. The children of Mother and M.A. were born in March 2012, May 2014, and May 2015.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 2 of 10 manager Bailey Sandlin (“FCM Sandlin”) “responded to a report due to

[Mother] stating that the biological father was holding the children hostage in

the attic”; that FCM Sandlin “observed the home to be in disarray with varying

stages of food decay on the floor, dirty clothes, cat food, a rusted can opener,

and a jagged can lid in reach of the children”; and that she observed fecal

matter smeared across the wall. It also alleged that Mother was in jail on

charges including disorderly conduct, resisting arrest, and neglect of a

dependent; that the family has a history with DCS; that services were

previously offered through CHINS actions; and that despite prior services

Mother continued to demonstrate an inability to provide the children with a

safe, drug-free home. The petition further alleged that Father and M.A. have

not successfully demonstrated an ability and willingness to appropriately parent

the children and are unable to ensure their safety and well-being while in the

care of Mother. Appellant’s Appendix Volume II at 51.

[4] The court held factfinding hearings in June 2018. Father testified that he did

not feel the Children were safe in the custody of Mother. He testified that the

last time he saw the Children was in July 2017 for two or three hours and that,

prior to that, he had not seen the Children for about four or five years. When

asked how long he had believed Mother was not an appropriate parent for the

Children, Father replied “[a]bout four or five years,” and when asked to explain

his conclusion, he answered “[w]e had certain little confrontations and stuff,”

“we took it in our own hands to have visitation without CHINS and she got

into [an] altercation with my sister and after that I got into an altercation with

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 3 of 10 her husband,” “I was jumped and stabbed and after that stuff just started really

going downhill and she was taking me away from the kids,” “[e]very time I call

she was hanging up on me, putting restraining orders on me,” “I’d never even

been to their house,” and “[s]he’s putting restraining orders on me, all kinds of

stuff, threatening to arrest me.” Transcript Volume II at 126-127. When asked

if he wanted the Children in his custody, he answered affirmatively. When

asked, “[s]ince 2012 have you ever filed any official paperwork asking for

custody,” Father answered “I did, but it never went through.” Id. On cross-

examination, Father indicated that, since this CHINS case opened in March, he

had been visiting with the Children about twice a week. A DCS assessment

family case manager testified that she received a report in July 2017 related to a

car accident and indicated she was not able to speak with Father, because she

could not locate him.

[5] On July 19, 2018, the court issued an order finding the Children were CHINS.

The court found that, in March of 2012, a CHINS action was filed after

Mother’s third child was born with THC and cocaine in her system. It found

that, in July 2017, Mother, M.A., and the children came to the attention of

DCS based on a report of neglect which alleged that Mother and M.A. were

“involved in an automobile accident with all of the children” and that “[a]t that

time, [Mother] admitted that [M.A.] had purchased illicit substances and that

she smoked ‘the stick’.” Appellant’s Appendix Volume II at 145. The court

found that, in March 2018, Mother and the children came to the attention of

DCS based on a report alleging Mother was suffering from paranoid delusions;

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 4 of 10 that FCM Sandlin observed the condition of the home; and that, on the night of

FCM Sandlin’s assessment, Mother appeared to be under the influence of an

illicit substance, displayed bursts of aggressive behavior, attempted to lunge at

FCM Sandlin and had to be restrained by law enforcement, yelled to the

children to come downstairs and save her from the police, and repeatedly yelled

for her children to look at her while she was handcuffed and seated on the

ground. The court further found that, upon removal, the children’s belongings

were extremely dirty, the children did not have matching shoes, none of their

belongings could be transported with them due to being in poor condition, and

the children had to be wrapped in blankets. It found that, during her supervised

parenting time, Mother was not able to properly supervise the children and that

Mother has been recommended to engage in a parenting assessment and

parenting education. It noted that an individual therapist identified that Mother

has mental health and substance abuse issues and that Mother meets with the

therapist but has not taken any action to support change.

[6] The court found that Mother has a diagnosis of bipolar disorder, has been

prescribed but is not currently taking medication, reports difficulty sleeping, has

suffered from manic episodes and has displayed irrational and compulsive

behavior, and has expressed feelings of excessive worry and extreme sadness. It

found that Mother’s therapist does not believe that the children can safely

return to her care at this time due to her substance abuse and untreated mental

state, and that the children, have been recommended to therapy to address their

mental health needs and negative behaviors. The court further found that

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 5 of 10 Mother has recently used PCP and methamphetamine, and is employed but

does not have sufficient income to support herself and all of the children.

[7] The court also found:

33. [The children’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. [Mother’s] untreated substance abuse and mental health has resulted in her inability to provide the children with appropriate care and supervision. [Father] has not maintained contact with [the Children]. [M.A.] is incarcerated and is unable to provide care for [his children].

34. [The children] need care, treatment, or rehabilitation that the children are not receiving and is unlikely to be provided or accepted without the coercive intervention of the Court. As [Mother] has not voluntarily sought mental health and substance abuse treatment, the intervention of this Court is needed to compel her to do so. As [Father] has not taken any steps to maintain contact with his children, the intervention of the Court is needed to assist in developing his relationship with his children. . . . Lastly, the intervention of the Court is needed to ensure that the children receive the recommended therapy and appropriate care while their parents are addressing the above-stated issues.

Id. at 147. The court subsequently issued a dispositional order granting Father

parenting time in his home and increased parenting time upon positive

recommendations from DCS, the guardian ad litem, and service providers. It

issued a parental participation order requiring Father engage in a home-based

therapy program referred by the family case manager and follow all

recommendations.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 6 of 10 Discussion

[8] The issue is whether sufficient evidence supports the trial court’s determination

that the Children are CHINS. Father argues that the finding that he did not

maintain consistent contact with the Children is not supported by the record

and that, although he was not able to exercise parenting time consistently

before the CHINS filing, the opposite was true at the time of the factfinding

hearing. He argues that “[c]ustody could have been decided in through the

bundled cases” and that he “was not shown to be anything other than fit.”

Appellant’s Brief at 15. He argues he was ready, willing, and able to care for

the Children. In response, DCS contends that Father did not appear for the

Children until this CHINS case was initiated, and that, because he has not

taken the necessary steps to remedy Mother’s failure to provide for the

Children’s needs up to this third instance of DCS involvement, despite his

awareness of prior involvement, the court reasonably inferred that continued

court involvement would be necessary. In reply, Father argues that Mother did

not let him see the Children, that from the moment he was informed of the

CHINS he did everything possible to have the Children placed with him, and

that his lack of contact prior to the Children’s removal from Mother is not a

sufficient basis for a CHINS finding.

[9] In reviewing a trial court’s determination that a child is in need of services, we

neither reweigh the evidence nor judge the credibility of witnesses. In re S.D., 2

N.E.3d 1283, 1286-1287 (Ind. 2014), reh’g denied. Instead, we consider only the

evidence that supports the trial court’s decision and reasonable inferences

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 7 of 10 drawn therefrom. Id. at 1287. As to issues covered by findings, we apply the

two-tiered standard of whether the evidence supports the findings and whether

the findings support the judgment. Id. We review remaining issues under the

general judgment standard, under which a judgment will be affirmed if it can be

sustained on any legal theory supported by the evidence. Id.

[10] Ind. Code § 31-34-1-1 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.

The CHINS statute does not require that a court wait until a tragedy occurs to

intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Rather, a

child is a CHINS when he or she is endangered by parental action or inaction.

Id. A CHINS determination establishes the status of a child alone. In re N.E.,

919 N.E.2d 102, 106 (Ind. 2010). Because a CHINS determination regards the

status of the child, a separate analysis as to each parent is not required in the

CHINS determination stage. Id. The conduct of one parent can be enough for

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 8 of 10 a child to be adjudicated a CHINS. Id. The purpose of a CHINS adjudication

is to protect children, not punish parents. Id. The resolution of a juvenile

proceeding focuses on the best interests of the child, rather than guilt or

innocence as in a criminal proceeding. Id.

[11] We note that Father does not challenge the trial court’s findings regarding the

CHINS action in 2012, the accident involving Mother and the Children in

2017, Mother’s mental health diagnosis and drug use, or the reasons for the

Children’s removal in 2018. Further, he does not dispute the court’s findings

regarding the condition of the home in which the Children were living, that the

Children’s belongings could not be transported and they had to be wrapped in

blankets at the time of removal, and that the Children have been recommended

to therapy to address their mental health needs and negative behaviors. The

court additionally found that Father has not maintained consistent contact with

the Children, the most recent time he visited the Children prior to the filing of

this CHINS action was for a few hours in July 2017, and prior to that he had

not seen the Children in four or five years. The record reveals that testimony

was elicited from Father at the factfinding hearings which supports these

findings. Also, Father indicated that he has believed Mother is not an

appropriate parent for four or five years and has felt that the Children are not

safe with her. To the extent Father stated that he filed paperwork for custody

but it never went through, that Mother prevented him from seeing the Children,

or that he participated in visitation after the CHINS case was filed, we note that

the record reflects that Mother and Father shared joint legal custody and that

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 9 of 10 the trial court was able to consider Father’s testimony and the extent to which it

affected whether the Children required care they were unlikely to be provided

without the court’s intervention.

[12] While the fact that Father did not have contact with the Children for a number

of years may not, standing alone, render the Children CHINS, we cannot

conclude that the court was precluded from considering this fact, together with

the evidence regarding the care provided by Mother of which Father was aware

at least in part, in determining whether the Children were in need of care,

treatment, or rehabilitation that they were not receiving and were unlikely to be

provided without the coercive intervention of the court. See Ind. Code § 31-34-

1-1. The evidence related to Mother, Father, and the Children’s needs supports

the court’s determination that the Children were in need of services and the

coercive intervention of the court was necessary.

[13] For the foregoing reasons, we affirm the trial court’s determination that the

Children are CHINS.

[14] Affirmed.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2159 | February 28, 2019 Page 10 of 10