MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Aug 15 2017, 5:34 am
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 Joann M. Price Curtis T. Hill, Jr. Merrillville, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of J.L., A Child in August 15, 2017 Need of Services, Court of Appeals Case No. 45A04-1702-JC-313 L.H., Mother, Appeal from the Appellant-Respondent, Lake Superior Court v. The Honorable Thomas P. Stefaniak, Jr., Judge The Honorable Indiana Department of Child Matthew B. Gruett, Magistrate Services, Trial Court Cause No. Appellee-Petitioner. 45D06-1607-JC-842
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 1 of 14 [1] L.H. (“Mother”) appeals from the juvenile court’s order adjudicating J.L.
(“Child”) to be a child in need of services (“CHINS”). Mother raises two issues
for our review, which we restate and consolidate as follows:
I. Whether the juvenile court abused its discretion when it denied Mother’s motion to continue the fact-finding hearing; and
II. Whether there was sufficient evidence presented to support the CHINS adjudication.
[2] We affirm.
Facts and Procedural History [3] Mother is the biological mother of Child, who was born on January 15, 1999.1
Mother had prior substantiated history with the Indiana Department of Child
Services (“DCS”) from 2006 when she left Child, who was seven years old at
the time, with a relative without first notifying the relative. Mother did not
come back for Child for a few days. In 2012, DCS again became involved with
Mother, when she no longer wanted Child, who was then 13 years old, in her
care, due to Child’s behavior. Although Mother did agree to have Child come
back in her care, “within that month [Child] was placed in foster care through
the probation department.” Tr. Vol. II at 18-19. Child went into foster care in
2012 and has remained out of Mother’s care since 2012. During the time since
1 K.L. is the father of Child, but does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 2 of 14 2012, Child has “been in and out of foster care, . . . Department of Corrections
[(“DOC”)], placements, and things like.” Id. at 17.
[4] When Child was released from DOC in February 2016, she began living with
Mother’s father (“Grandfather”) because Mother was not able to care for her
because Mother was experiencing pregnancy complications. Grandfather never
had formal guardianship or any form of legal custody of Child. While in DOC,
Child had been taking medications and attending counseling. However, when
DCS became involved with Child later in 2016, Grandfather told DCS that he
had not obtained the medications for her, and she was not in counseling. Id. at
14.
[5] In June 2016, DCS began an investigation into Child and Grandfather because
there were allegations that they were not getting along. They were offered
services, but at an assessment one month later, they were not participating in
the services. On July 27, 2016, DCS received a referral that Grandfather no
longer wanted Child in his home because Child was disrespectful to him, and
he was no longer able to take care of her. DCS went to Grandfather’s home
and spoke with Child and Grandfather. Child stated that Grandfather had been
drinking alcohol all day, that he was intoxicated, and that they had been
arguing. Id. at 13. As part of the assessment, DCS spoke to Mother, and she
“stated [Child] could not come stay with her.” Id. at 16. DCS removed Child
from Grandfather’s care because Grandfather and Mother were unwilling to
care for Child. Child was placed in foster care.
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 3 of 14 [6] On July 28, 2016, DCS filed a petition alleging Child to be a CHINS. The
petition alleged that, “DCS took custody of the child, [Child], due to child’s
grandfather being unwilling to maintain her in his home, mother’s
unwillingness to assume custody of the child, [Child]’s mental health concerns
for which she has not been receiving treatment, and her behaviors requiring
further intervention.” Appellee’s App. Vol. II at 4. At the initial hearing held the
same day, Mother did not request counsel and admitted in part and denied in
part the allegations in the CHINS petition, particularly only denying allegation
3, which was the allegation about Grandfather drinking every day and acting
aggressively. Id. at 3, 10-11. The juvenile court took Mother’s CHINS
admission under advisement “due to [M]other being a licensed nurse and this
matter is due to the behavior of the child.” Id. at 11-12. The juvenile court later
allowed Mother to withdraw her admission at the fact-finding hearing.
[7] Although Mother did not request an attorney initially, the juvenile court later
appointed counsel to represent Mother at the pretrial hearing. Mother and her
appointed counsel appeared at the next pretrial hearing on October 19, 2016, at
which time the fact-finding hearing was set for January 11, 2017. Mother’s
original appointed counsel discontinued her employment with the county on
December 31, 2016 and withdrew as Mother’s counsel. Renee Ortega
(“Ortega”) was subsequently appointed to represent Mother on January 5,
2017. On January 10, 2017, Ortega filed a motion to continue the fact-finding
hearing, asserting that Mother did not feel prepared to go forward with the
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 4 of 14 hearing “with a new attorney on such short notice.” Id. at 18. The juvenile
court denied the motion the same day.
[8] At the fact-finding hearing, Mother again requested a continuance and alleged
that she had not had contact with her original counsel since the October 19
hearing. Mother also admitted that her original attorney’s office had tried to
schedule a phone interview with Mother, but that Mother was unable to keep
the telephone appointment due to work obligations. She stated that thereafter
she “never got – got a chance to contact anybody.” Tr. Vol. II at 7. The
juvenile court inquired of Mother as to why she had not let the court know she
was having problems contacting her counsel. Mother responded that she did
not know what to do because she had no one advising her. Id. at 8-9. The
juvenile court then explained that, since Child was turning eighteen years old
on January 15, which was only four days later, “this is the only opportunity
that [DCS] has to present evidence in relation to their petition, so there is no
ability to continue the hearing.” Id. at 8. Ortega reiterated the request for a
continuance, but stated that she understood the need to move forward and that
she would proceed as best she could. Id. at 10. The juvenile court denied the
request and found that a continuance would prejudice DCS because it would
lose its ability to prosecute the case when Child turned eighteen. Id. at 11. The
juvenile court then proceeded with the fact-finding hearing.
[9] At the fact-finding hearing, DCS family case manager Rachel Fesko (“FCM
Fesko”) testified that she believed that Child was a CHINS because Child had
been diagnosed with several mental health issues and was not receiving any
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 5 of 14 kind of treatment and had no one that was “willing to care for her.” Id. at 19-
20. There was testimony given from family case manager Haley McLean
(“FCM McLean”) that Mother “was authorized to do a parenting assessment,”
which she never completed and therapeutic visitation, which she never
participated in. Id. at 28. During the CHINS proceedings, Mother had asked
the juvenile court not to authorize services for her because “this had nothing to
do with her so she did not want to participate in . . . any services.” Id. at 28-29.
Testimony was given that, prior to DCS involvement, neither Mother nor
Grandfather were providing Child with what she needed, but that since DCS’s
involvement, Child was participating in services, working with a therapist, and
learning independent living skills.
[10] Mother testified at the hearing that she had not taken Child into her home
when she was released from DOC because Mother was pregnant and
experiencing complications and could not handle a “violent kid.” Id. at 43. At
the hearing, Mother stated that it was not in the best interest of Child to be
placed with her because of Child’s violent behavior. Id. at 44. Mother testified
that she did not know who would take care of Child and that she did not know
what would happen when Child turned eighteen a few days later. Id. at 45-46.
[11] Child also testified, and when asked if she was willing to move back with
Mother after her DOC release, Child stated, “I can't make nobody want me.”
Id. at 48. Child said she was participating in services, counseling, and
independent living services. Child had obtained a job and was building career
goals and working on her education with the goal of going to college.
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 6 of 14 [12] At the conclusion of the fact-finding hearing, the juvenile court granted DCS’s
petition and found that the permanency plan called for independent living and
not reunification services. Mother now appeals.
Discussion and Decision
I. Motion to Continue [13] The decision to grant or deny a motion for a continuance is within the sound
discretion of the trial court. F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App.
2012). We will reverse the trial court only for an abuse of that discretion. Id.
A trial court abuses its discretion when its decision is clearly against the logic
and effect of the facts or the reasonable and probable deductions that may be
drawn therefrom. Id. “An abuse of discretion may be found on the denial of a
motion for a continuance when the moving party has shown good cause for
granting the motion.” Rowlett v. Vanderburgh Cnty. Office of Family & Children,
841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied; see Ind. Trial Rule 53.5.
No abuse of discretion will be found when the moving party has not shown that
he was prejudiced by the denial. F.M., 979 N.E.2d at 1039. The party seeking
a continuance must show that he or she is free from fault. In re B.H., 44 N.E.3d
745, 748 (Ind. Ct. App. 2015), trans. denied.
[14] Mother argues that the juvenile court abused its discretion when it denied her
motion to continue the fact-finding hearing. She contends that her motion
should have been granted because she had not had contact with her original
counsel since the hearing in October 2016, and Ortega was only appointed to be
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 7 of 14 her counsel a few days before the fact-finding hearing. Because of this, Mother
asserts that she was not afforded adequate time to prepare for the hearing and
gather pertinent evidence. Mother claims she was prejudiced by the denial of
her motion for continuance because findings of abuse or neglect against a
parent can have direct consequences on the parent’s ability to maintain or
secure employment and housing.
[15] On January 10, 2017, Ortega, who had been newly appointed to represent
Mother, filed a motion to continue the fact-finding hearing, asserting that
Mother did not feel prepared to go forward with the hearing “with a new
attorney on such short notice.” Appellee’s App. Vol. II at 18. The motion also
alleged that Mother felt her right to a fair trial would be impacted if she was
required to proceed with the January 11 fact-finding hearing, and she requested
more time to obtain required documents and to discuss the matter with her
attorney. Id. The motion was denied the same day by the juvenile court. At
the fact-finding hearing, Mother orally requested a continuance and alleged that
she had not had contact with her original counsel since the October 19 hearing.
She admitted that her original attorney’s office had tried to schedule a phone
interview with her, but that Mother was unable to keep the telephone
appointment due to work obligations. She stated that, thereafter, she “never got
– got a chance to contact anybody.” Tr. Vol. II at 7. The juvenile court asked
Mother why she had not let the court know she was having problems contacting
her counsel, and Mother responded that she did not know what to do because
no one was advising her. Id. at 8-9. The juvenile court then explained that,
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 8 of 14 because Child was turning eighteen years old four days later, on January 15,
“this is the only opportunity that [DCS] has to present evidence in relation to
their petition,” and there was no ability to continue the hearing. Id. at 8.
Ortega reiterated the request for a continuance, but stated she understood the
need to move forward and that she would proceed as best she could. Id. at 10.
The juvenile court denied the request and found that a continuance would
prejudice DCS because it would lose its ability to prosecute the case when Child
turned eighteen. Id. at 11.
[16] Mother argues that she requested the continuance because she needed more
time to confer with her new attorney and to obtain evidence. However, she did
not state how she was prejudiced by the denial of her motion to continue the
fact-finding hearing. She has not stated what evidence she wanted to uncover
or how the outcome of the fact-finding hearing would have been different if her
motion had been granted. The evidence presented at the hearing showed that
Mother had not taken Child into her home when Child was released from DOC
because Mother was pregnant and experiencing complications; at the hearing,
Mother testified she did not want Child to live with her. Id. at 43, 45. Mother
admitted that Child needed services, but stated that she was not willing to take
care of Child and did not know who would do so. Id. at 45. Mother’s position
since the beginning of the CHINS proceedings was consistent with her trial
testimony, and she had not shown how a continuance would have altered the
outcome of this case. No abuse of discretion will be found when the moving
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 9 of 14 party has not shown that she was prejudiced by the denial. F.M., 979 N.E.2d at
1039.
[17] Additionally, the juvenile court’s reasoning for denying Mother’s continuance
was that Child was turning eighteen in four days, and at that time, DCS would
lose jurisdiction over Child and then would not be able to help Child under
Indiana law. The evidence presented was that Child was in need of certain
services, and Mother admitted as much in her testimony. Tr. Vol. II at 45.
Under the circumstances of the present case, we conclude that the denial of
Mother’s motion to continue the fact-finding hearing was not clearly against the
logic and effect of the facts or the reasonable and probable deductions which
may be drawn therefrom. F.M., 979 N.E.2d at 1039. The juvenile court did not
abuse its discretion when it denied Mother’s motion to continue.
II. Sufficient Evidence [18] CHINS proceedings are civil actions, and therefore, it must be proven by a
preponderance of the evidence that a child is a CHINS as defined by statute. In
re L.C., 23 N.E.3d 37, 39 (Ind. Ct. App. 2015) (citing In re N.E., 919 N.E.2d
102, 105 (Ind. 2010)), trans. denied. When we review a CHINS determination,
we neither reweigh the evidence nor judge the credibility of the witnesses. Id.
We consider only the evidence that supports the juvenile court’s decision and
the reasonable inferences drawn therefrom. Id. at 39-40. We will reverse only
upon a showing that the decision of the juvenile court was clearly erroneous.
Id. at 40.
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 10 of 14 [19] Mother argues that insufficient evidence was presented to establish that Child
was a CHINS. She contends that the evidence presented at the fact-finding
hearing did not show that she had abandoned Child as required under the
statute. Mother asserts that the evidence showed that she was consistently
involved with Child’s plan of care since 2012, that she was physically not able
to care for Child at the time Child was removed from Grandfather’s care, and
that she was not ordered to participate in any services. Mother, therefore,
claims that there was no evidence to support the juvenile court’s finding that
Child had been abused or neglected by Mother or Grandfather and that Child
was a CHINS under Indiana Code section 31-34-1-1.
[20] DCS had the burden of proving by a preponderance of the evidence that Child
was a CHINS. Ind. Code § 31-34-12-3. Indiana Code sections 31-34-1-1
through 11 specify the elements of the CHINS definition that the State must
prove:
(1) the child is under the age of 18;
(2) one or more particular set or sets of circumstances set forth in the statute exists; and
(3) the care, treatment, or rehabilitation needed to address those circumstances is unlikely to be provided or accepted without the coercive intervention of the court.
In re N.E., 919 N.E.2d at 105. Here, the juvenile court adjudicated Child to be a
CHINS pursuant to Indiana Code section 31-34-1-1, which provides:
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 11 of 14 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.
Therefore, this statute requires “three basic elements: that the parent’s actions
or inactions have seriously endangered the child, that the child’s needs are
unmet, and . . . that those needs are unlikely to be met without State coercion.”
In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).
[21] The evidence presented at the fact-finding hearing showed that Mother was
unable or unwilling and refused to care for Child. Testimony was given that, at
the time Child was removed from Grandfather’s care in July 2016, Mother told
DCS that “[Child] could not come stay with her.” Tr. Vol. II at 16. Evidence
was presented that Child had not been in Mother’s care since 2012. At the fact-
finding hearing, Mother testified that she was not willing to care for Child and
stated she did not know what would happen to Child or who would take care of
Child when she turned eighteen. Id. at 45-46. FCM Fesko testified that Child
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 12 of 14 had been diagnosed with several mental health issues and, prior to DCS
involvement, Child was not receiving any kind of treatment, neither Mother nor
Grandfather were providing Child with what she needed, and Child had no one
that was “willing to care for her.” Id. at 19-20. Evidence was also presented
that, since DCS’s involvement, Child was participating in services, working
with a therapist, and learning independent living skills.
[22] Contrary to Mother’s contention that she was not ordered to participate in any
services, the juvenile court had ordered her to complete a parenting assessment
and to participate in therapeutic supervised visitation with Child. Appellee’s
App. Vol. II at 11. At the fact-finding hearing, evidence was presented that
Mother failed to do either of these. Tr. Vol. II at 26-27, 28, 31-32. We,
therefore, conclude that sufficient evidence was presented at the fact-finding
hearing to establish that Mother was unable or refused to supply Child with
necessary food, clothing, shelter, medical care, education, or supervision, and
Child’s physical or mental condition was seriously impaired or seriously
endangered as a result and that Child needed care, treatment, or rehabilitation
that she was not receiving and was unlikely to be provided without the coercive
intervention of the court. See Ind. Code 31-34-1-1. Sufficient evidence
supported the juvenile court’s determination that Child was a CHINS.
[23] Mother contends that the present case is analogous to In re V.H., 967 N.E.2d
1066 (Ind. Ct. App. 2012), in which a panel of this court reversed a CHINS
determination because “it was apparent that Mother . . . was addressing V.H.’s
behavioral issues” and the court could not agree that V.H. needed care,
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 13 of 14 treatment, or rehabilitation that she was not receiving and was unlikely to be
provided without the coercive intervention of the court. Id. at 1073. In V.H.,
although the mother had refused to pick V.H. up after her arrest because she
wanted V.H. to be involved in counseling before coming back home, the
mother sought out services for V.H. both before and after DCS became
involved. Id. at 1073-72. The present case is clearly distinguishable from V.H.
Here, the evidence showed that Mother did not take any affirmative steps to
provide Child with services either before or after DCS became involved. The
present case is also distinguishable because the mother in V.H. was willing to
take her child back into her home if the child received counseling. Here,
Mother did not want Child in her home at all and testified that she was not
willing to care for Child and that she did not know what would happen to Child
or who would take care of Child when she turned eighteen. Mother’s attempt
to liken the present case to V.H. is without merit. The juvenile court properly
determined Child to be a CHINS.
[24] Affirmed.
[25] Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A04-1702-JC-313 | August 15, 2017 Page 14 of 14