In the Matter of: A.M. and J.M., Minor Children, D.M., Father v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 31, 2019
• Docket: 18A-JC-3015
• 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 31 2019, 9:00 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 ATTORNEYS FOR APPELLEE Kyle D. Gobel Curtis T. Hill, Jr. Collier Gobel Homann LLC Attorney General of Indiana Crawfordsville, Indiana Erik J. Bryant Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: A.M. and J.M., May 31, 2019 Minor Children, Court of Appeals Case No. 18A-JC-3015 D.M., Father, Appeal from the Montgomery Appellant, Circuit Court v. The Honorable Harry Siamas, Judge The Indiana Department of Trial Court Cause Nos. Child Services, 54C01-1808-JC-223 Appellee. 54C01-1808-JC-224

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 1 of 10 [1] D.M. (“Father”) appeals the trial court’s order determining that A.M. and J.M.

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] A.M. who was born in May 2008 and J.M. who was born in March 2012 are

the children of Father and S.M. (“Mother”). The court entered a decree of

dissolution in April 2014 which dissolved the marriage of Father and Mother

and ordered that Father have sole custody of the children and Mother have

supervised visitation.

[3] On August 6, 2018, the Department of Child Services (“DCS”) filed petitions

alleging the children were CHINS. The petitions alleged in part that DCS

received a report on August 3, 2018, the children were homeless and Father

was using methamphetamine, the family had been the subject of two prior

reports in 2018 and nineteen reports since 2010, and the children were found

living in a tent in the backyard of a family friend, R.J., who said she was the

only person feeding the children. They further alleged Father’s whereabouts on

August 3, 2018, were unknown, DCS made several attempts to contact him,

Mother stated that Father physically assaulted her on August 2, 2018, and a

family case manager observed bruises on Mother. According to the petitions,

A.M. said Mother and Father were in a fight and Father accidentally hit him,

J.M. said that Father punched him on the leg, while staying in a tent at their

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 2 of 10 grandmother’s yard the children were not allowed to go into the home to

shower, Father stated Mother abuses prescription pills or is using

methamphetamine and should not be around the children but that he had been

allowing her around them anyway, and Mother failed a drug screen for

methamphetamine. The children were removed with the assistance of law

enforcement.

[4] In September 2018, DCS filed a petition to introduce statements made by the

children. On October 3, 2018, the court entered an order that the children’s

statements may be introduced and admitted into evidence at the factfinding

hearing. On October 4, 2018, the court held the CHINS factfinding hearing at

which DCS presented the testimony of R.J., DCS assessor Zoey Rowe, and

family case managers Melinda Tyler (“FCM Tyler”) and Charlene Colley

(“FCM Colley”). Father testified that he had not used drugs in the past two

years and had never used methamphetamine. He indicated that he moved to

R.J.’s sometime in mid-July, and when asked how long he had been living there

before DCS came and removed the children, he answered “[p]robably for about

two weeks.” Id. at 76. He testified that he stayed in the tent and that they all

had access to the shower, bathrooms, and food. When asked where he had

been living previously, Father indicated his mother’s house and testified that he

had a tent in her yard, that he slept in it a lot of times but not all of the time,

and that the children slept inside and had everything they needed at the house

including a shower and food. Father also indicated that he had a pending

charge for theft as a level 6 felony.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 3 of 10 [5] On October 19, 2018, the court entered an Order on Fact Finding Hearing

which found the children were CHINS and made the following findings of fact:

1. Father took the children to [R.J.’s] home to live in a tent for 2 weeks; [R.J.] was a complete stranger to the children.

2. Both children witnessed domestic violence between [Mother] and [Father].

3. Mother stated [Father] beat her.

4. Mother used drugs and was under the influence.

5. Mother is the non-custodial parent; and [Father] allowed her around the children knowing she was using drugs and under the influence of drugs.

6. [A.M.] was accidently struck in the nose by [Father] during a domestic violence incident between [Mother] and [Father].

7. Father has hit [J.M.] on the leg.

8. The children witnessing domestic violence is traumatic to them and causes them harm.

9. When DCS interviewed [A.M.], he was not appropriately dressed.

10. Due to [Father’s] mistrust of the DCS, he has refused to cooperate with the DCS.

Appellant’s Appendix Volume 2 at 42-43. The court subsequently issued a

dispositional order.

Discussion

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

that the children are CHINS. Father argues that the court’s findings that the

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 4 of 10 children were living in a tent, that Mother stated that he beat her, and that he

allowed her to be around the children when she was under the influence were

clearly erroneous. He argues that Mother was incarcerated at the time of the

factfinding hearing, Mother’s addiction issues did not endanger the children,

and the findings regarding the domestic incidents, A.M.’s attire, and his

decision to decline services do not rise to the level necessary to support a

CHINS adjudication. The State responds that the record supports the

challenged findings and the court’s adjudication is not clearly erroneous.

[7] 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

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.

[8] 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

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 5 of 10 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

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.

[9] The record reveals that R.J. testified that, in July 2018, Mother asked her if

Father and the children could camp in her backyard for a few days and that she

met the children when they came to stay with her. She indicated that she had

met Mother approximately eighteen months earlier at the house of an

acquaintance, and had been in jail with her. She testified that J.M. stayed in

the tent with Father most of the time and that a lot of times A.M. stayed with

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 6 of 10 her. When asked “[s]o [J.M.] stayed with his dad in the tent and [A.M.] stayed

with you many times,” she replied “[y]eah, a few times. They were only there

three to five days, but [A.M.] stayed inside the majority of the time.”

Transcript Volume II at 36. She testified that she fed them and Father did not

provide her with any food or money to feed them. When asked if Father said

where he was going with J.M. when he would leave, she answered “[h]e would

go scrap or whatever.” Id. at 37. She indicated that Mother came to her home

a couple of times during that period and that Mother and Father had left the

day before DCS removed the children and the children had stayed overnight

with her. She indicated the children were able to enter her house and shower

when they wanted and that she had not met Father before he moved into her

yard.

[10] Rowe, the DCS assessor, testified that she drove around Crawfordsville on

August 3rd looking for Mother because no one could find her and that Mother

was found at an apartment and appeared to be under the influence. According

to Rowe, Mother said that she had relapsed and that Father had beat her the

previous day, and she appeared to have fresh marks and bruises on her arms

and legs.

[11] FCM Tyler testified that she received a report of domestic violence on June 29,

2018, and made contact with Father who declined to allow her to interview the

children. She testified she received another report on July 6th that Mother was

on methamphetamine. She indicated that she reached out to the paternal

grandmother, who informed her that the children were living in a tent in the

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 7 of 10 woods with Father. According to FCM Tyler, Mother met with her at the

probation department in mid-July and stated she saw the children at least twice

a week, that she was able to interact with them, and that Father knew that she

was using methamphetamine. Mother told her that Father would not allow her

to interview the children and the children were at their grandmother’s, but

FCM Tyler was unable to confirm that Father lived with the grandmother.

FCM Tyler testified she received another report on August 3rd that the children

had been left at R.J.’s home without Father being present and there were

concerns that the children lacked provisions. She indicated she visited R.J.’s

home, took photographs of the tent, and interviewed the children separately.

[12] According to FCM Tyler, she introduced herself to A.M. who stated that

Father did not like the government. A.M. described an incident in which

Mother jumped into the back of a truck while Father was driving and that his

grandmother was driving behind them and the children were in her vehicle.

A.M. said that they had stayed in a tent in his grandmother’s backyard, he did

not have access to a shower, and she would not let him in the house to shower.

A.M. also said there was a fight in which Father had tried to hit Mother and

“he had gotten in the middle and [Father] had hit and bloodied his nose.” Id. at

57. A.M. referred to Mother as a psycho. She testified that A.M. was dressed

in oversized clothing, was not wearing shoes or socks, and had sores on his feet

and calves. She also testified that J.M. said that his parents argue and yell and

that Father hit him. FCM Tyler indicated that Mother called R.J.’s home,

spoke with FCM Tyler, asked multiple times that the children be placed in

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 8 of 10 foster care, and stated that Father “had taken her to the woods the day before

and stripped her naked and beat her for twelve hours and she was terrified for

her children’s safety.” Id. at 59. She testified the decision was made to detain

the children because Father could not be located and he had not returned to the

home after a significant period of time.

[13] FCM Colley testified that she became involved on August 3rd, the day of the

removal, and subsequently set up visits with Father, that she tried visitation in

the community, and that Father “was erratic and absolutely inappropriate so

now we go to an office setting” where there is a security officer and a system in

place to contact the police. Id. at 65. She testified that she asked him to

participate in services and provide drug screens and that “he said absolutely

not.” Id. at 66. She indicated that she had seen Mother in jail twice and

Mother indicated that she and Father used to use heroin, then she was on

methamphetamine, and that, when she was released from incarceration, Father

was on methamphetamine. According to FCM Colley, Mother indicated that,

on August 2, 2018, “he shot her up and he used meth.” Id. at 67. She believed

Mother had pending drug charges. She further testified that Mother “talked

about the twelve hour beating that she received from [Father]” and “the truck

incident where . . . the kids were present . . . and she was it was either pushed or

maybe even jumped out, they were fighting her and [Father] took off.” Id. at

67-68. Mother also “talked about a time at Circle K . . . she was in a pair of

underwear, a t-shirt and a bra and he had beat her,” “she mouthed back to

him,” and “that created more beatings.” Id. at 68.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 9 of 10 [14] To the extent Father’s argument invites us to reweigh the evidence and reassess

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

We conclude the evidence as set forth above and in the record supports the trial

court’s findings and its determination that the children are in need of services

and the coercive intervention of the court is necessary.

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

children are CHINS.

[16] Affirmed.

May, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019 Page 10 of 10