In the Matter of I.S. and J.S. (Children Alleged to be in Need of Services) and E.S. (Father) E.S. (Father) v. Indiana Department of Child Services, AND Child Advocates, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 10, 2020
• Docket: 20A-JC-706
• 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 Sep 10 2020, 9:00 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 ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of I.S. and J.S. September 10, 2020 (Children Alleged to be in Need Court of Appeals Case No. of Services) and E.S. (Father); 20A-JC-706 E.S. (Father), Appeal from the Marion Superior Court Appellant-Respondent, The Honorable Marilyn A. v. Moores, Judge The Honorable Danielle Gaughan, Indiana Department of Child Magistrate Services, Trial Court Cause No. 49D09-1909-JC-2336 Appellee-Petitioner 49D09-1909-JC-2337 AND

Child Advocates, Inc., Appellee - Guardian ad Litem

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 1 of 14 May, Judge.

[1] E.S. (“Father”) appeals the adjudication of his children, I.S. and J.S.,

(collectively, “Children”), as Children in Need of Services (“CHINS”). He

argues some of the trial court’s findings are not supported by the evidence and

that the remaining findings do not support the juvenile court’s adjudication of

Children as CHINS. We affirm.

Facts and Procedural History [2] J.T. (“Mother”) and Father are the parents of I.S., born July 20, 2008; and J.S.,

born May 13, 2011. Mother was the custodial parent of Children, and Father

exercised parenting time every other weekend and one evening a week. Father

is married to A.S. (“Stepmother”), who has one daughter (“Stepsister”) who

lives with Father and Stepmother.

[3] On September 3, 2019, the Department of Child Services (“DCS”) received a

report that J.S., then eight years old, had reported that I.S., then eleven years

old, had touched him inappropriately in a sexual manner. DCS conducted an

investigation, including interviews with Children, Mother, and Father, during

which I.S. admitted she touched J.S. inappropriately while at Mother’s home.

On September 5, 2019, DCS removed Children from Mother’s home and

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 2 of 14 placed J.S. with Father. I.S. was placed first with other relatives, and then

ended up in shelter care at Courage Center because no options for relative care

existed at which there were no younger children.

[4] On September 9, 2019, DCS filed a petition alleging Children were CHINS.

The juvenile court held a fact-finding hearing on the CHINS petition on

December 18, 2019. Mother admitted Children were CHINS at that hearing.

The juvenile court took the admission under advisement until the completion of

Father’s fact-finding hearing on December 23, 2019. Father was present at both

fact-finding hearings and stipulated to the Children’s statements during their

interviews, which included J.S.’s allegation of sexual abuse and I.S.’s admission

that she was the perpetrator of that sexual abuse, but Father denied Children

were CHINS. He proposed the custody arrangement be changed so that

Children could live with him, Stepmother, and Stepsister. Father testified he

planned to engage Children with therapists who were covered by his insurance.

[5] However, at the time of Father’s proposal, Children had been active in

individual therapy for approximately two-and-one-half months. I.S. was

working with a Credentialed Sexually Abusive Youth Clinician (“CSAYC”) to

address sexually maladaptive behavior, and J.S. was working with a therapist

who specializes in trauma. Under Father’s plan, the Children would have to

change therapists, which was not recommended by their current therapists

because doing so would slow the progress already made in therapy.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 3 of 14 [6] Children’s therapists also agreed it would not be in either child’s best interests

for Children to live in the same house. J.S.’s therapist testified that J.S. had not

“made much progress towards reconciling his negative emotions about the

abuse” and “he needs to work through that . . . those anger feelings that he has

before he can go back to living with [I.S.].” (Tr. Vol. II at 79.) I.S.’s therapist

recommended that her “treatment be completed before they’re placed together”

because “[i]f [I.S.] has shown inappropriate behaviors in the past, which she

reportedly has, then it’s . . . based on current research, unlikely that those

behaviors would stop without the treatment having been completed.” (Id. at

70.)

[7] Father testified he had created a safety plan in the event Children were placed

with him. In the plan, J.S. would have his own room, and I.S. would share a

room with Stepsister. Father, who works in the evening, and Stepmother, who

works during the day, would supervise Children by “watching them all day,

every day.” (Id. at 46.) Father asked the juvenile court to not adjudicate

Children as CHINS and grant him primary custody of Children. The juvenile

court took the matter under advisement.

[8] On January 21, 2020, the juvenile court entered its order adjudicating Children

as CHINS. On February 19, 2020, the juvenile court held a dispositional

hearing and the next day entered its dispositional decree. The court ordered

that J.S. remain placed with Father, I.S. remain placed in shelter care at

Courage Center, Children participate in individualized therapy, and Mother

have visitation with Children.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 4 of 14 Discussion and Decision [9] Father challenges Children’s adjudications as CHINS. A CHINS proceeding is

civil in nature, so DCS must prove by a preponderance of the evidence that a

child is a CHINS as defined by the juvenile code. In re N.E., 919 N.E.2d 102,

105 (Ind. 2010). The CHINS petition was filed pursuant to Ind. Code § 31-34-

1-1, which states:

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.

[10] Under Indiana Code section 31-34-1-2, the State must prove that “the child’s

physical or mental health is seriously endangered due to injury by the act or

omission of the child’s parent, guardian, or custodian.” Under Indiana Code

section 31-34-1-3, the State must prove the child was a victim of a sexual

offense and “needs care, treatment, or rehabilitation that: (A) the child is not

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 5 of 14 receiving; and (B) is unlikely to be provided or accepted without the coercive

intervention of the court.”

[11] A CHINS adjudication focuses on the needs and condition of the child, and not

the culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of a

CHINS adjudication is not to punish the parent, but to provide proper services

for the benefit of the child. Id. at 106. “[T]he acts or omissions of one parent

can cause a condition that creates the need for court intervention.” Id. at 105.

“A CHINS adjudication can also come about through no wrongdoing on the

part of either parent[.]” Id.

While we acknowledge 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. Standing alone, a CHINS adjudication does not establish culpability on the part of a particular parent. Only when the State moves to terminate a particular parent’s rights does an allegation of fault attach. We have previously made it clear that CHINS proceedings are “distinct from” involuntary termination proceedings. The termination of the parent-child relationship is not merely a continuing stage of the CHINS proceeding. In fact, a CHINS intervention in no way challenges the general competency of a parent to continue a relationship with the child.

Id. (citations omitted).

[12] When a juvenile court enters findings of fact and conclusions of law in a

CHINS decision, we apply a two-tiered standard of review. In re Des. B., 2

N.E.3d 828, 836 (Ind. Ct. App. 2014). We first consider whether the evidence

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 6 of 14 supports the findings and then whether the findings support the judgment. Id.

We may not set aside the findings or judgment unless they are clearly

erroneous. Id. Findings are clearly erroneous when the record contains no

facts to support them either directly or by inference, and a judgment is clearly

erroneous if it relies on an incorrect legal standard. Id. We give due regard to

the juvenile court’s ability to assess witness credibility and do not reweigh the

evidence; we instead consider the evidence most favorable to the judgment with

all reasonable inferences drawn in favor of the judgment. Id. We defer

substantially to findings of fact, but not to conclusions of law. Id. Unchallenged

findings “must be accepted as correct.” Madlem v. Arko, 592 N.E.2d 686, 687

(Ind. 1991).

1. Challenged Findings Finding 15

[13] Father first challenges Finding 15, which states:

15. Father stated that if the child in needs [sic] of services case closed and both [Children] were placed in his care, Father would be able to pay for therapy for [Children] through his insurance. Father, at the time of trial, had not identified therapists for [Children] and had no real therapeutic plan for [Children].

(App. Vol. II at 172.) Father argues this finding “mischaracterizes the evidence

presented.” (Br. of Appellant at 19.) Father directs us to his testimony

regarding his plan for therapy for Children should the juvenile court deny

DCS’s petition to declare Children as CHINS and release Children to Father’s

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 7 of 14 custody. Father testified he understood the type of therapy Children needed

and would continue that therapy should they be placed in his care. He

indicated that he might continue therapy with Children’s current therapists and

new therapists through his insurance, but he preferred to use a therapist covered

by his insurance.

[14] While Father had used an online directory to locate appropriate therapists and

contacted Midtown Mental Health, he was unable to begin Children in that

therapy until they were no longer under the DCS therapist’s care or the DCS

therapist transferred Children to a therapist at Midtown Mental Health. Father

contends he had a plan for Children’s therapeutic needs, but DCS’s intervention

prevented him from enacting it.

[15] However, the State also presented evidence that Father’s safety plan did not

have a specific plan for therapy and that Father did not take J.S. to therapy

multiple times because J.S. had violin lessons. Children’s current therapists

testified that continuation of therapy was crucial to reuniting the family and

that changing to a new therapist may result in setbacks in each child’s recovery.

Father’s arguments are invitations for us to reweigh the evidence and judge the

credibility of witnesses, which we cannot do. See In re Des. B., 2 N.E.3d at 836

(appellate court does not reweigh evidence or judge the credibility of witnesses

on appeal). The State presented evidence to support the finding that Father did

not have a sufficient plan for Children’s therapeutic needs should they be

released into his care.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 8 of 14 Findings 12, 18, and 19

[16] Father also challenges Findings 12, 18, and 19 of the juvenile court’s order.

Those findings concern Father’s safety plan and state, in relevant part:

12. Fathers [sic] plan is to have [Children] in his care and to ensure the [Children’s] safety with line of sight supervision, twenty-four hours a day, seven days a week.

*****

18. . . . Father maintains the [Children] are not in need of services if they are placed in his care. Father contends that he and Step-mother can maintain line of sight supervision at all times to ensure [J.S.’s] safety. Fathers [sic] plan to have line of sight supervision at all times of both [Children] is unrealistic and would be for any parent. Father and Step-mothers [sic] hearing impairment creates an even greater obstacle to their ability to keep [J.S.] safe with [I.S.] residing in the same home. Additionally, therapists are recommending against [Children] residing in the same home at this time. Based on [I.S.’s] past sexual abuse of [J.S.], it is unlikely that those behaviors would not reoccur as she is only in the beginning stages of therapy. [I.S.’s] therapy must be completed before the siblings are placed together. [J.S.] has not made progress toward reconciling his negative emotions surrounding the abuse and his anger is directed at [I.S.]. [J.S.] is also only at the beginning stages of therapy. Placing [Children] together at this time puts [J.S.] at serious risk of additional emotional trauma as well as again being sexually abused by [I.S.].

19. . . . Fathers [sic] plan to ensure the [Children’s] safety is insufficient. Fathers [sic] belief that there will be line of sight supervision of [Children] at all times is unrealistic. Fathers [sic] plan to have [I.S.] share a room with her step-sister is unwise and

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 9 of 14 puts another child at risk. Father does not have therapy in place for [Children]. Father does not appear to fully understand the severity of [I.S.’s] behaviors and he is therefore unable to keep [Children] safe if they are placed in the same home before their therapy is completed.

(App. Vol. II at 172-3.) Father agrees that a “line of sight” plan is “unrealistic,

but he argues that was not the plan.” (Br. of Appellant at 22.) Instead, he

claims that his safety plan was that Children would be monitored at all times.

[17] Father directs us to his safety plan, wherein he provides for an “informed

supervisor” who is an adult, “[f]ree of sex offending history,” “[f]ree of any

denial” about the situation between Children, and free of illegal drugs and using

alcohol “to the point of impairment.” (Ex. Vol. I at 26.) If an informed

supervisor is not available, under the plan Father is responsible for securing

“alternative supervision.” (Id.) The safety plan indicates J.S. is to not have

unsupervised contact with I.S. “either directly or indirectly.” (Id.) The safety

plan sets forth the same supervision requirements for I.S., adding that “I.S. will

not be responsible to babysit or care- take for J.S.” (Id. at 27.)

[18] While we agree the evidence does not support the characterization of Father’s

supervision plan for Children as one of “line of sight,” we disagree with Father

that his plan is sufficient. While Father contends that, under his safety plan

“there would be no opportunity for sexual abuse to reoccur,” (Br. of Appellant

at 23), that statement ignores the fact that he works at night, his wife works

during the day, and there are no identified alternate caregivers for Children. He

does not challenge the juvenile court’s findings that he does not fully Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 10 of 14 understand the nature and severity of the incident that occurred between

Children and his plan ignores Children’s therapists’ recommendations that

Children not live together until they have completed therapy.

[19] Further, on appeal, Father continues to argue that the risk of additional abuse

by I.S. toward J.S. is not supported by the evidence, despite both therapists

testifying to the contrary. J.S.’s therapist reported J.S. should not live with I.S.

until J.S. is able to work past a pattern of “anger outburst[s] which involved

yelling . . . [and] are directed at [I.S.] right now.” (Tr. Vol. II at 79.) I.S.’s

therapist testified that she has not identified what led to I.S.’s abuse of J.S. and

thus she cannot work toward keeping “it from happening again.” (Id. at 70.)

I.S.’s therapist stated that the “[b]est practice” would be that I.S.’s “treatment

must be completed before [Children] are placed together.” (Id.) Father

maintains the fact that Children cannot be placed together until therapy is

“completed” is a “vague and intrusive mandate which usurps a Father’s right to

make his own parenting decisions about his family’s and children’s future.”

(Br. of Appellant at 24.)

[20] Father blames the sexual abuse incident between Children on Mother’s lack of

supervision and contends he provided sufficient supervision for Children during

his parenting time and can continue to provide supervision without DCS

intervention. However, Father testified that he observed Children “[w]restling”

and told them to “stop” and disciplined them prior to the incident, (Tr. Vol. II

at 55), and Father’s admonishments did not ultimately prevent I.S. from

sexually abusing J.S. While we agree that the characterization of Father’s plan

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 11 of 14 as “line of sight” is not necessarily supported by the evidence, it does not

change the fact that Father’s plan to constantly monitor Children while he is

working, his wife is working, and without having identified appropriate

alternative caregivers, in addition to seemingly minimizing the seriousness of

the situation between Children, is insufficient to meet Children’s needs.

Father’s arguments to the contrary are invitations for us to reweigh the

evidence, which we cannot do. See In re Des. B., 2 N.E.3d at 836 (appellate

court does not reweigh evidence or judge the credibility of witnesses on appeal).

2. Conclusions of Law [21] Father challenges the juvenile court’s conclusions of law supporting its

adjudication, and we simply determine whether the findings are sufficient to

support the judgment. In re A.H., 751 N.E.2d 690, 695 (Ind. Ct. App. 2001),

trans. denied. Father argues Children are not CHINS because the incident

between Children happened when Children were unsupervised at Mother’s

house and such an incident would not occur at Father’s house. Again, this

argument ignores the testimony of Children’s therapists who noted each child

needed specialized therapy to address what led to the sexual abuse, in I.S.’s

case, and how to deal with the anger about the traumatic event, in J.S.’s case.

[22] The fact that the sexual abuse incident between Children occurred while they

were in Mother’s care and not Father’s care does not mean that DCS

intervention is not necessary. See In re N.E., 919 N.E.2d at 105 (“the acts or

omissions of one parent can cause a condition that creates the need for court

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 12 of 14 intervention”). Father, who observed inappropriate behaviors between

Children prior to the sexual abuse, did not seek treatment before J.S. was

traumatized by I.S.’s actions, and Father now questions the recommendations

of the therapists in place to help Children. Because of the incident at Mother’s

house, Children now need therapy, and that therapy has not been provided by

either parent, and thus the coercive intervention of the court is needed to

provide that therapy.

[23] Further, J.S., who was in Father’s care at the time of the juvenile court’s order,

had missed multiple therapy sessions because Father took him to violin lessons

instead, which indicates Father did not make therapy a priority. Based thereon,

we cannot say that the juvenile court erred when it adjudicated Children as

CHINS. See Matter of E.K., 83 N.E.3d 1256, 1261 (Ind. Ct. App. 2017) (“In

order for a child to be a CHINS, DCS must prove not only that one or the other of

the parents suffers from shortcomings, but also that the parents are unlikely to

meet a child’s needs absent coercive court intervention.”) (emphasis added),

trans. denied; and contra id. at 1262 (reversing CHINS adjudication because DCS

did not prove coercive intervention of the court was necessary when parents

had made great strides in addressing the issues that resulted in CHINS

investigation, retained custody of their children, and were actively participating

in treatment).

Conclusion

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 13 of 14 [24] We conclude DCS presented sufficient evidence to support Finding 15.

Regarding Findings 12, 18, and 19, while we agree the characterization of

Father’s supervision plan was incorrect, it does not change the evidence that his

safety plan was insufficient to meet Children’s needs. Based on that evidence

and the juvenile court’s other findings, we hold the juvenile court did not err

when it adjudicated Children as CHINS. Accordingly, we affirm the juvenile

court’s decision.

[25] Affirmed.

Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 14 of 14