In the Matter of A.G. (Minor Child), Child in Need of Services, J.L. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 29, 2020
• Docket: 20A-JC-298
• 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 May 29 2020, 9:37 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Mark Small Monika Prekopa Talbot Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of A.G. (Minor May 29, 2020 Child), Child in Need of Court of Appeals Case No. Services, 20A-JC-298 J.L. (Mother), Appeal from the Montgomery Circuit Court Appellant, The Honorable Harry A. Siamas, v. Judge Trial Court Cause No. Indiana Department of Child 54C01-1910-JC-272 Services, Appellee.

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 1 of 11 [1] J.L. (“Mother”) appeals the trial court’s order adjudicating A.G. to be a child in

need of services (“CHINS”). We affirm.

Facts and Procedural History

[2] A.G. was born in August 2016 and is the child of Mother and R.G. (“Father”).

In November 2018, A.G. was seen in an emergency room following a car

accident and several dental problems were discovered. Dr. Blair Jones-

Bumgardner (“Dr. Jones”), a dentist and pediatric dental specialist, determined

A.G. had severe early childhood caries and developed a treatment plan. Dr.

Jones removed certain teeth, placed crowns, and noted there were still four

smaller cavities which needed to be addressed. 1 The dental office later

contacted Mother, Mother asked if all the treatment performed was necessary,

she was informed it was necessary because A.G. had a high chance of an

abscess and serious infection, and Mother later indicated she would be taking

A.G. to another dentist.

[3] On October 17, 2019, the Indiana Department of Child Services (“DCS”) filed

a petition alleging A.G. was a CHINS and that on October 14, 2019, DCS

received a report that A.G. was screaming in pain due to the condition of her

teeth and was taken to the emergency room where she received a prescription

for the infection. Also on October 17, 2019, the court held an initial hearing at

which Father stated he believed A.G. needed immediate care. Zoey Rowe, an

1 During the treatment, A.G. swallowed a crown and it was determined by radiograph that the crown was in the child’s stomach and would pass.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 2 of 11 assessment worker with DCS, testified that, in October 2019, DCS received a

report that A.G. had been prescribed an antibiotic at Riley Children’s Hospital

because she had an abscess in her mouth. She indicated that Mother told the

dentist that she was not giving A.G. the antibiotic. She further indicated the

dentist had stated that the abscess, if not treated, could lead to cheek swelling,

an abscess in the brain, or possibly death from a blood infection.

[4] Rowe indicated she had a conversation with Mother about the importance of

the antibiotic. When asked about Mother’s response, Rowe testified: “She at

first you know she laughed and said she won’t die and then she said I’ll just give

it to her right now, but it was already after we had had this conversation

multiple times in the past even with our last assessment.” Transcript Volume II

at 12-13. Rowe indicated Mother did not give the antibiotic to A.G. when she

was there. When asked if she had a further conversation with Mother about

administering the antibiotic, Rowe replied: “She told me that she had not given

her the antibiotic at that point. That was the contact that I had with her last

night she was swearing at me on the phone while I was dropping her daughter

off with her father.” Id. at 13. She indicated she removed A.G. from Mother

on October 16, 2019, and placed her with Father. She also indicated Father

lived in Iowa, drove to Indiana every two weeks for visitation, and would

temporarily be staying in Indiana. The court found that Father was an

appropriate placement for A.G. and ordered Father, in consultation with DCS,

to obtain appropriate dental care for her.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 3 of 11 [5] On October 18, 2019, Father took A.G. to an appointment with Dr. Jones.

Following a consultation with Father, Dr. Jones performed treatment which

included the extraction of three teeth due to infection or large decay and the

placement of crowns on two teeth.

[6] On January 6, 2020, the court held a hearing on the petition alleging A.G. was

a CHINS at which it heard testimony from Dr. Jones, family case manager

Griffin Flavin (“FCM Flavin”), Father, Mother, and the court appointed

special advocate (“CASA”).

[7] Dr. Jones testified that A.G.’s primary care physician had a food log for A.G.

due to her low weight and had recommended a dental evaluation. Dr. Jones

testified “[s]o there [were] four teeth left to complete treatment a year ago when

mom declined to come back to our office,” “[o]f those four teeth that were not

completed, two of them had abscesses and then two of them needed stainless

steel crowns,” and “[m]eaning that over the course of the year that mom did

not continue with treatment the decay got progressively worse and two actually

became infected.” Id. at 38. When asked about the danger of having an

untreated abscess, Dr. Jones replied “[h]ospitalization or death,” “[c]hildren

especially with a vulnerable immune system and things of that nature,

hospitalizations and need for IV antibiotics are very, very high,” and “I recently

just had a child waiting on a root canal very similar to the infection [A.G.] had

actually had to go to the hospital for IV antibiotics because infections can

spread so rapidly in children.” Id. at 39. On cross-examination, Dr. Jones

indicated A.G.’s need for emergency dental care has been addressed.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 4 of 11 [8] FCM Flavin testified that he was assigned to the case in October 2019, that

Mother indicated she had attended Cummins but did not sign a release of

information, and that, when he asked her why she would not release the

information to DCS, she said she did not trust its assessment and she had been

diagnosed “with PTSD and I believe anxiety.” Id. at 65. He testified that he

supervised eleven or twelve visits between Mother and A.G. and at one point

Mother told A.G. that she could not trust anything Father said. He testified

DCS was concerned that, if A.G. were returned to Mother, there would be a

resurgence of a lack of dental care and Mother would not follow through with

doctors’ recommendations.

[9] Mother testified she believed in an all-natural way of raising a child and the

foundation of her belief system was that “[t]he food that you eat, the exercise

you do, what you do stimulating your body, your spirit, your entire system

relies on your whole health, everything you do, fruits and vegetables, basically.”

Id. at 77. When asked “where is the basis for that belief? Is it religious, is it

spiritual, what is it, where does it come from,” she answered “[a] little bit of all

of it philosophical, religious.” Id. She indicated her belief system was Christian

and her denomination was Methodist. Mother testified she was opposed to

vaccines but not to antibiotics. She indicated she made appointments with

other dentists but did not attend and testified “I had gotten a job, car broke

down, lots of bad things in the same situation. [A.G.] was just never unhealthy

and I just kept an eye on it.” Id. at 87. She indicated she allowed radiographs

even though she did not believe in them, she had limited financial resources,

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 5 of 11 earned about $7,000 a year, and worked at a newspaper and a restaurant. On

cross-examination, when asked about the basis for her beliefs about “fluoride,

antibiotics and such,” Mother answered “the basis of this is that I was on

Xanax and pain pills from ten to twenty-eight years old and it destroyed my

brain health and since then I have learned to live a proper life without coca cola

and Totino’s pizzas and drugs to fulfill just waking up in the morning.” Id. at

90-91. When asked if she had mental health issues, she answered: “Before I

met [Father] I had generalized anxiety disorder. After that relationship, post-

traumatic stress disorder.” Id. at 100. She indicated she was treating those

issues through exercise, acupuncture, and therapy with Cummins Mental

Health.

[10] DCS’s counsel argued that A.G. had a prescription from the hospital to treat

her infection, Mother was not giving the prescription to A.G., and DCS had to

remove A.G. so that she would receive treatment and follow-up care. She

further argued that, even if Mother had certain beliefs, there was an exception

for when a child is placed in a life-threatening situation and that A.G. would

not be safe and Mother would not participate in necessary services without the

intervention of the court.

[11] The CASA testified that Mother’s “decisions for medical care are eccentric at

best and do pose a danger to the child should she become ill.” Id. at 111. The

CASA also testified she did not think it would be safe, at this point, to return

the child to Mother’s care.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 6 of 11 [12] The court stated Mother had a right to her belief system until A.G. was placed

“in very serious jeopardy and that’s what happened here.” Id. at 112. It also

found “[t]he dental risk is over for now, but it wasn’t taken care of by mother it

was taken care of by father and the DCS” and it had “to assess whether the

coercive intervention of the court is necessary going forward to ensure that the

child will receive appropriate medical and dental care.” Id. at 113.

[13] The court issued an order finding A.G. to be a CHINS and providing:

l. Mother’s actions seriously endangered her daughter, refusing to take care of child’s dental issues.

2. In November 2018, [M]other took child to Dr. Jones for dental care but her reaction when child swallowed the crown requiring another x- ray by not following up to complete the 4 cavities was neglect: child had developed abscesses in the untreated cavities in November 2019.

3. Doctor believed that if the abscesses had not been treated, child was at risk of dying.

4. Mother’s beliefs placed the child in serious jeopardy.

5. Father saw the condition of the child’s mouth and asked [M]other to get the child dental care and mother said she would take care of it.

6. Child’s dental issues have been resolved by the care of [Father] and DCS; therefore, coercive intervention of the Court is needed.

7. Mother cannot put aside her beliefs to keep the child safe. She needs services to educate her and rehabilitate [M]other to protect the child.

8. [M]other’s mental health issues prevent her from understanding or parenting appropriately.

Appellant’s Appendix Volume II at 13-14. An entry in the chronological case

summary indicates the court held a disposition hearing, ordered that A.G. Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 7 of 11 should continue placement with Father under DCS supervision, approved

recommended services, stated the permanency plan is reunification and

Mother’s visitation would continue to be supervised at this time, and set a

review hearing.

Discussion

[14] Mother claims the trial court erred in concluding A.G. was a CHINS. She

argues that her rights to religion and conscience were violated as the court did

not properly consider Ind. Code § 31-34-1-14, “[t]here is no statement in the

statute that placing a child in serious ‘jeopardy’ qualifies that child to be in need

of services,” and she believes in an all-natural approach to health. Appellant’s

Brief at 19. She also argues the reasons for removal had been resolved by the

time of the hearing.

[15] We do not reweigh the evidence or judge the credibility of witnesses and

consider only the evidence which supports the trial court’s decision and

reasonable inferences drawn therefrom. In re S.D., 2 N.E.3d 1283, 1286-1287

(Ind. 2014), reh’g denied. We apply the two-tiered standard of whether the

evidence supports the findings and whether the findings support the judgment.

Id. 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

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 8 of 11 necessary food, clothing, shelter, medical care, education, or supervision:

(A) when the parent, guardian, or custodian is financially able to do so; or

(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; 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 a court to 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. The purpose of a CHINS adjudication is to protect children. Id.

[16] Ind. Code § 31-34-1-14 provides:

If a parent, guardian, or custodian fails to provide specific medical treatment for a child because of the legitimate and genuine practice of the religious beliefs of the parent, guardian, or custodian, a rebuttable presumption arises that the child is not a child in need of services because of the failure. However, this presumption does not do any of the following:

(1) Prevent a juvenile court from ordering, when the health of a child requires, medical services from a physician licensed to practice medicine in Indiana.

(2) Apply to situations in which the life or health of a child is in serious danger.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 9 of 11 Although an adult generally cannot be forced to undergo medical treatment

against his religious principles, a parent’s decision to refuse lifesaving medical

treatment for a minor child must yield to the State’s interest in protecting the

health and welfare of the child. Schmidt v. Mut. Hosp. Servs., Inc., 832 N.E.2d

977, 982 (Ind. Ct. App. 2005).

[17] To the extent Mother does not challenge the trial court’s findings of fact, the

unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

of the argument that the findings were clearly erroneous), trans. denied.

[18] With respect to Mother’s argument regarding Ind. Code § 31-34-1-14, although

the trial court’s order did not use the term “serious danger,” the court found

that Mother’s beliefs placed A.G. in “serious jeopardy” and also found that her

actions “seriously endangered” A.G., see Appellant’s Appendix Volume II at 13,

and it is clear the court considered the statutory exception and determined that

DCS met its burden. The evidence as set forth above and in the record,

including the testimony of Dr. Jones, supports the court’s finding, and we

cannot say reversal is required on this basis.

[19] As for the argument the reasons for A.G.’s removal had been resolved, the

record shows that A.G. received treatment following the intervention of DCS

and the court. The court specifically found that Mother cannot put aside her

beliefs to keep A.G. safe and needs services so that she can protect A.G. and

that her mental health issues prevent her from parenting appropriately. To the

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 10 of 11 extent Mother invites us to reweigh the evidence and judge the credibility of

witnesses, we are unable to do so. See In re S.D., 2 N.E.3d at 1286. The court

was able to consider Mother’s actions and omissions over time and ability to

protect A.G. The court’s findings and adjudication of A.G. as a CHINS are not

clearly erroneous.

[20] For the foregoing reasons, we affirm the trial court’s order.

[21] Affirmed.

Najam, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020 Page 11 of 11