MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 12 2020, 9:31 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 Heather M. Schuh-Ogle Curtis T. Hill, Jr. Thomasson, Thomasson, Long & Attorney General of Indiana Guthrie, P.C. Columbus, Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In that Matter of B.Y., T.H., March 12, 2020 L.A., and A.A., Minor Children Court of Appeals Case No. in Need of Services; 19A-JC-2437 T.Y. (Mother), Appeal from the Bartholomew Circuit Court Appellant-Respondent, The Honorable Kelly S. Benjamin, v. Judge The Honorable Heather M. Mollo, Indiana Department of Child Magistrate Services, Trial Court Cause Nos. 03C01-1905-JC-2877 Appellee-Petitioner. 03C01-1905-JC-2878 03C01-1905-JC-2879 03C01-1905-JC-2880
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 1 of 9 Statement of the Case [1] T.Y. (“Mother”) appeals the trial court’s order adjudicating her four minor
children, B.Y., T.H., L.A., and A.A. (“the Children”) to be Children in Need of
Services (“CHINS”). 1 Mother raises three issues for our review, which we
restate as the following two issues:
1. Whether the Indiana Department of Child Services (“DCS”) presented sufficient evidence to show that the Children were CHINS.
2. Whether the trial court’s dispositional order imposed reasonable efforts to preserve and reunify the family.
[2] We affirm.
Facts and Procedural History [3] On May 17, 2019, seven-year-old L.A. and six-year-old A.A. came home from
school on their school bus but were locked out of their home. It was about 2:20
in the afternoon, and the heat index that day was near 100 degrees. Neither
child had water. They waited for two hours before police arrived following a
neighbor’s phone call. And, once the police were there, L.A. and A.A. waited
an additional two hours before being escorted to a police station.
1 The fathers of the Children do not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 2 of 9 [4] This was not the first time the Children had been locked out of their home on a
school day. On prior occasions, if T.H., one of the older children, were with
the younger children he would help L.A. climb the fence into the backyard, and
L.A. would then enter the house through an unlocked back door and open the
front door for the other children.
[5] On May 17, as on the prior occasions, Mother was asleep inside the house.
One of the responding officers, Columbus Police Department Officer Aaron
Graham, observed her vehicle in the driveway and called every contact number
he had for Mother, to no avail. He knocked on the front door “to the point of
almost knocking the door off the hinges” without a response. Tr. Vol. 2 at 66.
And when L.A. and A.A. directed him to a particular window near where
Mother usually slept, Officer Graham knocked on the window “to the point of
almost breaking the glass.” Id. Officer Graham’s attempts to awaken Mother
were unsuccessful.
[6] B.Y. was dismissed from school around 3:00 that afternoon and walked home
after his parents had failed to pick him up. He arrived at the house around 4:00
that afternoon. Officer Graham then took B.Y., L.A., and A.A. back to the
police station and contacted DCS, who took custody of the Children. 2 Once
Columbus Police Department officers were able to contact Mother, they
arrested her for neglect of a dependent.
2 It is not clear when DCS took custody of T.H.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 3 of 9 [7] DCS filed its petitions alleging the Children to be CHINS. In its petitions, DCS
alleged that Mother had endangered the Children due to her inability, refusal,
or neglect to provide them with proper supervision on May 17 and the prior
occasions in which the Children had been locked out of the house after school.
DCS further alleged that law enforcement had reported concerns of drug use
inside Mother’s home. And DCS stated that it had been unable to verify the
adequacy of the conditions inside the home.
[8] At an ensuing fact-finding hearing on DCS’s petitions, Mother acknowledged
that the family home is not in “the best neighborhood,” and she does not “like
to keep the key outside.” Id. at 12. She further acknowledged that she was
asleep inside the house on May 17 when L.A. and A.A. attempted to come
home from school and that that was not the first time she had slept through the
Children attempting to come home but being locked out. She added that she
has trouble sleeping due to a pain from a shoulder injury she sustained several
years ago but, when she did sleep, she slept heavily.
[9] Following the fact-finding hearing, the court adjudicated the Children to be
CHINS based on the “continuation of a pattern of . . . [Mother] being asleep
when the [C]hildren arrive home from school.” E.g., Appellant’s App. Vol. 2 at
53. The court further found as follows:
On multiple occasions, the [C]hildren have been unable to wake [Mother] or can do so only after shaking and yelling at [her]. Similarly, when getting ready for school in the mornings, [Mother] sometimes cannot be awakened. While the . . . older brother [B.Y.] helps ensure [the other Children] get on the bus on
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 4 of 9 time, [B.Y.] himself has missed school because he could not wake [his father, who lived with Mother,] up to drive [B.Y.] to school. There is a pattern of the [C]hildren and others not being able to wake or rouse the parents to care for the [C]hildren. . . .
Id. at 53-54. The court concluded:
There was evidence of suspected drug use by [Mother] based on [her] inability to be awakened. In addition, [the maternal grandmother] testified that [Mother] has asked her for pain pills in the past. . . . [Mother] . . . ha[s] refused DCS’s requests for drug screens. [Mother] was arrested after the first day of hearings for alleged theft of medications . . . . However, all of those medications were accounted for and there was no direct evidence of current drug use. . . .
Additional evidence was presented that the home was dirty and unsatisfactory for the [C]hildren to live there. However, the majority of that testimony related to a time at least seven or eight months ago, with the more recent testimony from the [C]hildren ranging from [the home] being cluttered but with no stale food to messy with stale food. Although DCS made some efforts to view the home, they were not successful and no motion to compel was sought.
The court finds that[,] although valid concerns about the condition of the home and potential drug use were raised, the evidence of these concerns was insufficient, at least standing alone, to support a finding that the [C]hildren are [CHINS]. However, the court also finds that [DCS] did meet its burden of proving that the [C]hildren are [CHINS] based on . . . [Mother’s] unwillingness or inability to provide adequate supervision for the [Children].
Id. at 54.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 12 2020, 9:31 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 Heather M. Schuh-Ogle Curtis T. Hill, Jr. Thomasson, Thomasson, Long & Attorney General of Indiana Guthrie, P.C. Columbus, Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In that Matter of B.Y., T.H., March 12, 2020 L.A., and A.A., Minor Children Court of Appeals Case No. in Need of Services; 19A-JC-2437 T.Y. (Mother), Appeal from the Bartholomew Circuit Court Appellant-Respondent, The Honorable Kelly S. Benjamin, v. Judge The Honorable Heather M. Mollo, Indiana Department of Child Magistrate Services, Trial Court Cause Nos. 03C01-1905-JC-2877 Appellee-Petitioner. 03C01-1905-JC-2878 03C01-1905-JC-2879 03C01-1905-JC-2880
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 1 of 9 Statement of the Case [1] T.Y. (“Mother”) appeals the trial court’s order adjudicating her four minor
children, B.Y., T.H., L.A., and A.A. (“the Children”) to be Children in Need of
Services (“CHINS”). 1 Mother raises three issues for our review, which we
restate as the following two issues:
1. Whether the Indiana Department of Child Services (“DCS”) presented sufficient evidence to show that the Children were CHINS.
2. Whether the trial court’s dispositional order imposed reasonable efforts to preserve and reunify the family.
[2] We affirm.
Facts and Procedural History [3] On May 17, 2019, seven-year-old L.A. and six-year-old A.A. came home from
school on their school bus but were locked out of their home. It was about 2:20
in the afternoon, and the heat index that day was near 100 degrees. Neither
child had water. They waited for two hours before police arrived following a
neighbor’s phone call. And, once the police were there, L.A. and A.A. waited
an additional two hours before being escorted to a police station.
1 The fathers of the Children do not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 2 of 9 [4] This was not the first time the Children had been locked out of their home on a
school day. On prior occasions, if T.H., one of the older children, were with
the younger children he would help L.A. climb the fence into the backyard, and
L.A. would then enter the house through an unlocked back door and open the
front door for the other children.
[5] On May 17, as on the prior occasions, Mother was asleep inside the house.
One of the responding officers, Columbus Police Department Officer Aaron
Graham, observed her vehicle in the driveway and called every contact number
he had for Mother, to no avail. He knocked on the front door “to the point of
almost knocking the door off the hinges” without a response. Tr. Vol. 2 at 66.
And when L.A. and A.A. directed him to a particular window near where
Mother usually slept, Officer Graham knocked on the window “to the point of
almost breaking the glass.” Id. Officer Graham’s attempts to awaken Mother
were unsuccessful.
[6] B.Y. was dismissed from school around 3:00 that afternoon and walked home
after his parents had failed to pick him up. He arrived at the house around 4:00
that afternoon. Officer Graham then took B.Y., L.A., and A.A. back to the
police station and contacted DCS, who took custody of the Children. 2 Once
Columbus Police Department officers were able to contact Mother, they
arrested her for neglect of a dependent.
2 It is not clear when DCS took custody of T.H.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 3 of 9 [7] DCS filed its petitions alleging the Children to be CHINS. In its petitions, DCS
alleged that Mother had endangered the Children due to her inability, refusal,
or neglect to provide them with proper supervision on May 17 and the prior
occasions in which the Children had been locked out of the house after school.
DCS further alleged that law enforcement had reported concerns of drug use
inside Mother’s home. And DCS stated that it had been unable to verify the
adequacy of the conditions inside the home.
[8] At an ensuing fact-finding hearing on DCS’s petitions, Mother acknowledged
that the family home is not in “the best neighborhood,” and she does not “like
to keep the key outside.” Id. at 12. She further acknowledged that she was
asleep inside the house on May 17 when L.A. and A.A. attempted to come
home from school and that that was not the first time she had slept through the
Children attempting to come home but being locked out. She added that she
has trouble sleeping due to a pain from a shoulder injury she sustained several
years ago but, when she did sleep, she slept heavily.
[9] Following the fact-finding hearing, the court adjudicated the Children to be
CHINS based on the “continuation of a pattern of . . . [Mother] being asleep
when the [C]hildren arrive home from school.” E.g., Appellant’s App. Vol. 2 at
53. The court further found as follows:
On multiple occasions, the [C]hildren have been unable to wake [Mother] or can do so only after shaking and yelling at [her]. Similarly, when getting ready for school in the mornings, [Mother] sometimes cannot be awakened. While the . . . older brother [B.Y.] helps ensure [the other Children] get on the bus on
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 4 of 9 time, [B.Y.] himself has missed school because he could not wake [his father, who lived with Mother,] up to drive [B.Y.] to school. There is a pattern of the [C]hildren and others not being able to wake or rouse the parents to care for the [C]hildren. . . .
Id. at 53-54. The court concluded:
There was evidence of suspected drug use by [Mother] based on [her] inability to be awakened. In addition, [the maternal grandmother] testified that [Mother] has asked her for pain pills in the past. . . . [Mother] . . . ha[s] refused DCS’s requests for drug screens. [Mother] was arrested after the first day of hearings for alleged theft of medications . . . . However, all of those medications were accounted for and there was no direct evidence of current drug use. . . .
Additional evidence was presented that the home was dirty and unsatisfactory for the [C]hildren to live there. However, the majority of that testimony related to a time at least seven or eight months ago, with the more recent testimony from the [C]hildren ranging from [the home] being cluttered but with no stale food to messy with stale food. Although DCS made some efforts to view the home, they were not successful and no motion to compel was sought.
The court finds that[,] although valid concerns about the condition of the home and potential drug use were raised, the evidence of these concerns was insufficient, at least standing alone, to support a finding that the [C]hildren are [CHINS]. However, the court also finds that [DCS] did meet its burden of proving that the [C]hildren are [CHINS] based on . . . [Mother’s] unwillingness or inability to provide adequate supervision for the [Children].
Id. at 54.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 5 of 9 [10] Thereafter, the court entered its dispositional order. In that order, the court
directed Mother, among other things, to complete a substance abuse evaluation
and any recommended treatment following that evaluation; submit to random
drug screens; participate in home-based case management to address keeping an
appropriate home; and participate in individual counseling. This appeal
ensued.
Discussion and Decision Issue One: Whether DCS Presented Sufficient Evidence to Show the Children are CHINS
[11] We first address Mother’s contention that DCS failed to present sufficient
evidence to show that the Children are CHINS. As our Supreme Court has
made clear:
In all CHINS proceedings, “the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code.” In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (quoting In re N.E., 919 N.E.2d 102, 105 (Ind. 2010)). When reviewing a CHINS adjudication, “we do not reweigh evidence or judge witness credibility” and will reverse a determination only if the decision was clearly erroneous. In re D.J., 68 N.E.3d 574, 577-78 (Ind. 2017). “A decision is clearly erroneous if the record facts do not support the findings or if it applies the wrong legal standard to properly found facts.” Id. at 578 (internal quotation omitted).
V.B. v. Ind. Dep’t of Child Servs. (In re Eq.W.), 124 N.E.3d 1201, 1208 (Ind. 2019).
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 6 of 9 [12] Here, the trial court concluded that DCS presented sufficient evidence to show
that the Children’s physical or mental health was seriously impaired or
seriously endangered as a result of Mother’s inability, refusal, or neglect to
supply the Children with necessary supervision. See Ind. Code § 31-34-1-1(1)
(2019). Mother asserts on appeal that the court’s conclusion is erroneous
because there is no evidence to support the trial court’s findings that the May 17
incident was part of a pattern or that, on multiple occasions, the Children have
been unable to wake Mother without yelling at or shaking her. Mother then
asserts that the May 17 incident was a one-time occurrence that was remedied
once the Children were able to get back into the house.
[13] Mother’s arguments are simply incorrect. L.A. and B.Y. each testified to other
times they had been locked out of the home while Mother slept inside. Indeed,
in her testimony to the trial court Mother herself acknowledged that the May 17
incident was not a one-time occurrence and that prior, similar occurrences had
taken place. Further, L.A. testified that “it was . . . hard” to wake her Mother,
and to do so the Children “needed to shake [her] a lot and yell a lot.” Tr. Vol. 2
at 92. The trial court’s findings that the May 17 incident was part of a pattern
and that to wake Mother the Children had to yell at or shake her are supported
by the record. And, as Mother’s argument that DCS failed to present sufficient
evidence is premised on her position that the May 17 incident was a one-time
occurrence, and that premise is incorrect, we likewise conclude that the trial
court did not err when it concluded that the Children were CHINS based on
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 7 of 9 Mother’s repeated inability, refusal, or neglect to provide the Children with
appropriate supervision.
Issue Two: Whether the Dispositional Order is Appropriate
[14] Mother next asserts that the court’s dispositional order directs her to participate
in services that are not related to behavior or circumstances supported by the
evidence. “Although the juvenile court has broad discretion in determining
what programs and services in which a parent is required to participate, the
requirements must relate to some behavior or circumstances that was revealed
by the evidence.” S.S. v. Ind. Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249,
1258 (Ind. 2012).
[15] According to Mother, the court’s order for her to complete a substance abuse
evaluation and any recommended treatment following that evaluation; submit
to random drug screens; participate in home-based case management to address
keeping an appropriate home; and participate in individual counseling are not
related to behavior revealed by the evidence. In particular, Mother relies on the
trial court’s statement in its judgment adjudicating the Children to be CHINS
that “the evidence of these concerns was insufficient.” Appellant’s App. Vol. 2
at 54.
[16] Again, we cannot agree with Mother’s reading of the record. The court did not
say, full stop, that it found DCS’s evidence of Mother’s drug use and an
inadequate home not credible, nor did the court outright reject DCS’s
allegations in those regards. Rather, the court said only that the evidence of
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 8 of 9 Mother’s alleged drug use and the inadequate home was not, “standing alone,”
sufficient to support a CHINS adjudication. Id. at 54. In other words, the court
found that Mother did have issues with drug use that should be addressed and
that Mother’s home was inadequate—the court simply concluded that those
concerns were not sufficient in themselves to adjudicate the Children to be
CHINS.
[17] The court having then adjudicated the Children to be CHINS based on other
evidence, we cannot say that the court erred when it directed Mother to
participate in services aimed at improving her behavior with respect to drug use
and an inadequate home, including the order to participate in counseling.
Indeed, part of the court’s findings include its assessment that “[t]here was
evidence of suspected drug use by [Mother] based on [her] inability to be
awakened.” Id. We think a dispositional order on these facts that failed to
account for such a possibility would be questionable.
[18] In sum, we affirm the trial court’s determination that the Children are CHINS
and its dispositional order directing Mother to participate in services.
[19] Affirmed.
Vaidik, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020 Page 9 of 9