In the Matter of A.W.: E.Y. v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 23, 2020
• Docket: 20A-JC-21
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 23 2020, 8:51 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Danielle L. Gregory David E. Corey Indianapolis, Indiana Robert J. Henke Deputy Attorneys General Indianapolis, Indiana Dede K. Connor Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of A.W.: July 23, 2020

E.Y., Court of Appeals Case No. 20A-JC-21 Appellant-Respondent, Appeal from the Marion Superior v. Court The Honorable Mark Jones, Judge Indiana Department of Child The Honorable Diana Burleson, Services, Magistrate Appellee-Petitioner, Trial Court Cause No. 49D15-1904-JC-924 and

Child Advocates, Inc.,

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 1 of 12 Appellee-Guardian ad Litem.

Riley, Judge.

STATEMENT OF THE CASE [1] Appellant-Respondent, E.Y. (Mother), appeals the trial court’s adjudication of

her minor child, A.W. (Child), as a Child in Need of Services (CHINS).

[2] We affirm.

ISSUE [3] Mother presents this court with one issue on appeal, which we restate as

follows: Whether the trial court erred by adjudicating Child to be a CHINS.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 2 of 12 FACTS AND PROCEDURAL HISTORY [4] Mother is the biological parent to Child, born on January 14, 2019. 1 B.W.

(Father) is the Child’s biological father. 2 Mother had been in a relationship

with Father for about nine months prior to DCS’s involvement. In March and

April 2019, DCS became involved with the family due to the parents’ domestic

violence in the presence of Child, and Father’s untreated mental health issues.

Mother told DCS’s family case manager (FCM) that Father busted through a

locked door, put his hands on her, and slapped her “in front of the children.”

(Transcript p. 65). On April 4, 2019, DCS filed a CHINS petition, alleging that

“Mother and Father [] have an extensive history of domestic violence in the

[Child’s] presence, and they were recently involved in a physical altercation.”

(Appellant’s App. Vol. II, p. 25). “Mother reported Father [] is diagnosed with

bipolar disorder and is not taking his medication as prescribed. Since May

2018, there have been multiple police runs to the family’s home due to domestic

violence disputes between Father [] and Mother. Additionally, on March 17,

2019, Father was detained by law enforcement and taken to St. Vincent’s Stress

Center due to his untreated mental health issues.” (Appellant’s App. Vol. II, p.

25). After the hearing, the trial court ordered Child removed from the Parents’

care and placed with Mother on a trial home visit, contingent upon (1)

1 Mother is also the biological parent to C.S., born on November 8, 2017. Although C.S. was initially detained by DCS and adjudicated a CHINS, his case was closed and he was placed with his biological father, who is not Child’s biological father. 2 Father does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 3 of 12 Mother’s participation in domestic violence and home-based therapy services

and (2) Mother obtaining a protective order against Father.

[5] By May 17, 2019, Father was incarcerated in Marion County jail “[b]ecause of

breaking and entering—residential breaking and entering and domestic violence

in front of the [Child]” and “strangulation,” resulting from an incident on May

12, 2019 where Mother was the victim. (Tr. pp. 6-7). At the time, Mother and

Child were living with maternal grandmother when Father “broke into [the]

house” and “things went bad.” (Tr. p. 19). Once inside, Father “choked her

and strangled her” with the Child present. (Tr. p. 65). As a result, a no-contact

order was put in place through the criminal cause and DCS amended its

CHINS petition to include the May 12, 2019 incident.

[6] On July 11, 2019, FCM was informed by Mother that Father had come to the

house the night before to see the Child, but “she did not let him in.” (Tr. p. 42).

However, while Mother was outside, Father returned to the house and entered.

Mother gathered the Child into her car and called the police. The following

day, July 12, 2019, Mother contacted the FCM and requested a “pack n play,”

which the FCM delivered to her house. (Tr. p. 42). When the FCM knocked

on the door, a male answered and informed the FCM that he was Mother’s

brother. Mother later confirmed that the man was her brother and “was

watching the [Child] for her” while she went to the store. (Tr. p. 43). On July

17, 2019, the FCM returned to Mother’s residence to inform her of the results

of her drug screen. As the FCM walked up to the home, he noticed the same

man that the FCM had encountered five days earlier. The man left the home

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 4 of 12 briefly, but then went back inside. When Mother exited the house, the FCM

inquired about the male but Mother denied that a man was in the house. The

FCM later discovered that the man at Mother’s residence was Father.

[7] On July 19, 2019, DCS filed an emergency motion to remove Child from

Mother’s care based on the events between July 11 and 17, 2019, and Mother’s

positive methamphetamine screen. The trial court conducted a hearing the

same day, at the close of which the court ordered the Child removed and placed

in foster care. The trial court also instructed Mother to participate in random

drug screens and supervised visitation.

[8] On July 25, 2019, the trial court held a fact-finding hearing at which Mother

denied that there had been any domestic violence incidents with Father prior to

DCS’s involvement. Although Mother had not participated in domestic

violence services or therapy, she had completed a survivor counseling

assessment with Jordan Fonseca (Fonseca), a counselor at Families First.

During the assessment, Mother informed Fonseca that she had been diagnosed

with ADHD and anxiety “a few years ago” and that she was not prescribed any

medication. (Tr. p. 32). When questioned as to why Mother was involved with

DCS, Mother’s response was “pretty vague.” (Tr. p. 30). She advised that “the

reason DCS got involved was because her partner at the time was outside

throwing rocks on the ground and the police were called and the next thing she

knew the next day or something like that, she had a note on her door stating

that they would like to speak to her regarding the [Child’s] safety.” (Tr. p. 30).

While Mother alluded that there were allegations of domestic violence, Fonseca

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 5 of 12 clarified that Mother “never told [him] that there was actually domestic

violence in the relationship.” (Tr. p. 30). Mother also questioned “why she

was needing to have a survivor counseling assessment.” (Tr. p. 30). When

describing her relationship with Father, Mother told Fonseca that Father has

bi-polar disorder and other mental health issues and he was not taking his medication so they had one bad day where he was kind of, you know, acting out and angry and things like that, but she never admitted to any physical abuse or any abuse that he did towards her or the children. It was more so that he was angry and outside throwing rocks and the neighbors thought that he was breaking into the house. So that’s why DCS got involved, but she denied any sort of domestic violence.

(Tr. pp. 31-32). When asked what she meant by a “bad day,” Mother explained

that “he was angry for some reason and he needed to go outside and cool

down.” (Tr. p. 32). Fonseca did not consider Mother to be “one hundred

percent truthful.” (Tr. p. 36). Upon the completion of the assessment, Fonseca

recommended that Mother participate in a sixteen-week survivor group therapy

program. However, Mother was hesitant to commit to the weekly group

sessions due to childcare barriers and transportation issues. Fonseca discharged

Mother when she failed to contact him to commence services.

[9] Paula Pettis-Garret (Garret), a licensed clinical social worker at Family

Community Partners, became involved with Mother on April 18, 2019 through

a DCS referral. Garret became concerned after the incident of domestic

violence between Mother and Father on May 12, 2019. Mother told Garret

that Father “bust[ed] in” the door and entered “without permission.” (Tr. 53).

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 6 of 12 She told Garret that Father “choked her” but she “didn’t go into detail what

kind of hitting.” (Tr. p. 53). Despite working with Mother ten or eleven times,

Garret did not “feel like [Mother] is quite catching that—what domestic

violence looks like just all together.” (Tr. p. 58). She was concerned that they

were “still at ground zero” and Mother was making excuses for Father. (Tr. p.

59). Garret recommended against closing the case “[b]ecause there’s been no

progress and we’re still having the issues with [Father].” (Tr. p. 61).

[10] Mother requested that the Child be allowed to reside with Mother in Paternal

Grandmother’s home. Paternal Grandmother, a DCS family case manager,

testified that she had not seen her son “for a couple of months” and he did not

know where she lived. (Tr. p. 79). She claimed that Father had robbed her

before and is “unmedicated and unstable.” (Tr. p. 80). She described her home

as having security cameras and being a safe place

[11] At the conclusion of the fact-finding hearing, the trial court took the matter

under advisement. Meanwhile, and prior to the trial court’s decision, Mother

started participating in services in September, but the provider believed that

Mother just “wanted to go through the motions in order to get the [Child] back”

and struggled to “grasp the concept of the seriousness of” domestic violence.

(Tr. pp. 87-88). Mother had not visited the Child since September 23, 2019,

apparently due to changes in visitation providers as well as Mother’s hope that

Child would be returned to her care.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 7 of 12 [12] On October 24, 2019, after taking the matter under advisement, the trial court

adjudicated Child as a CHINS. On November 14, 2019, DCS filed its petition

for parental participation and its predispositional report.

[13] Mother now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [14] Mother contends that the trial court abused its discretion in finding Child to be

a CHINS. In order to adjudicate a child as a CHINS, DCS must prove by a

preponderance of the evidence that:

(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 . . . to supply the child with 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.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 8 of 12 I.C. § 31-34-1-1 (2019). In making its determination, the trial court should

consider the family’s condition not just when the case was filed, but also when

it was heard. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014). A CHINS

adjudication cannot be based solely on conditions that have ceased to exist. In

re S.A., 15 N.E.3d 602, 611 (Ind. Ct. App. 2014), trans. denied. The adjudication

must be based on the evidence presented in court and not on the allegations in

the pleadings. Maybaum v. Putnam Co. O.F.C., 723 N.E.2d 951, 954 (Ind. Ct.

App. 2000). In reviewing a CHINS determination, we do not reweigh evidence

or assess witness credibility. Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct. App.

2017). We consider only the evidence in favor of the trial court’s judgment,

along with any reasonable inferences arising therefrom. Id.

[15] Mother maintains that the trial court erred in adjudicating Child to be a CHINS

because there was no evidence Child was in any danger, or that his needs

would go unmet in the absence of the coercive intervention by the trial court.

The purpose of a CHINS inquiry is to determine whether a child’s

circumstances require services that are unlikely to be provided without the

intervention of the court, and thus, the focus of a CHINS adjudication is on the

condition of the child alone, not on the culpability of one or both parents. In re

N.E., 919 N.E.2d 102, 105-06 (Ind. 2010). Nonetheless, “[n]ot every

endangered child is a child in need of services, permitting the State’s parens

patriae intrusion into the ordinarily private sphere of the family.” In re S.D., 2

N.E.3d at 1287. Rather, a CHINS adjudication under Indiana code section 31-

34-1-1 requires proof of three basic elements: the parent’s actions or inactions

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 9 of 12 have seriously endangered the child; the child’s needs are unmet; and “perhaps

most critically,” those needs are unlikely to be met unless the State intervenes.

Id. It is the last element that guards against unwarranted State interference in

family life. Id. State intrusion is warranted only when parents lack the ability

to provide for their children. Id. In other words, the focus is on the best

interests of the child and whether the child needs help that the parent will not be

willing or able to provide. Id. Despite a “certain implication of parental fault in

many CHINS adjudications, the truth of the matter is that a CHINS

adjudication is simply that—a determination that a child is in need of services.”

In re N.E. 919 N.E.2d at 105.

[16] Although we agree with Mother that she has made some positive changes by

starting services, we are concerned that Mother continues to deny the reality of

the domestic violence that exists in her relationship with Father, which led to

the Child’s detention in the first place. At the time of the fact-finding hearing,

Mother refused to admit that a domestic violence issue existed, despite the prior

history. Besides the domestic violence incident that led to DCS’s involvement

with the family, Mother and Father incurred three more incidents in the

timespan of barely a year. Furthermore, despite a protective order, Mother

allowed Father in the house, representing him as her brother when DCS

inquired about his presence.

[17] Even though evidence reflects that Mother participated in some domestic

violence and counseling services, Mother failed to grasp the importance of

domestic violence, instead minimalizing it and making excuses for Father.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 10 of 12 Although having met ten to eleven times with Garrett, Mother is still at the

beginning stage of the domestic violence education. Mother’s permission to

allow Father in the house in July 2019 directly led to the Child’s removal from

the trial home visit. As we have frequently recognized, a Child’s exposure to

domestic violence can support a CHINS finding. In re N.E., 919 N.E.2d at 105.

[18] Mother argues that an informal adjustment would be a more preferable option

than a CHINS adjudication, especially in light of her recent participation in

services. However, the record indicates that DCS and Mother attempted,

through mediation, to use an informal adjustment, but as recognized by

Mother, it was withdrawn and discharged at the July 25, 2019 fact-finding

hearing. Afterwards, Mother never argued that the trial court erred by

dismissing the Informal Adjustment.

[19] Recognizing that a CHINS determination is not a finding of guilt for either

parent, but rather a vehicle to ensure the safety of the child, we conclude that

Mother’s actions have seriously endangered the Child and without coercive

intervention of the court, the Child will not receive the safety and care he needs.

Mother denied the instances of domestic violence in the house, and

downplayed the seriousness of the situation, making excuses for Father’s

behavior. The Child needs a home environment that is stable and free of

domestic violence and substance abuse. The coercive intervention of the court is

required to accomplish this goal as Mother denied domestic violence was

present in the home and rejected the need for survivor counseling.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 11 of 12 Accordingly, the trial court did not abuse its discretion by adjudicating Child to

be a CHINS.

CONCLUSION [20] Based on the foregoing, we hold that the trial court properly adjudicated Child

to be a CHINS.

[21] Affirmed.

May, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-JC-21 | July 23, 2020 Page 12 of 12