In the Matter of J.M-C., I.M., E.M., B.M., M.F., Ale.F., Ala.F., Alin.F., and Alia.F., Children in Need of Services, T.M., Mother v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 30, 2019
• Docket: 18A-JC-2838
• 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 Jul 30 2019, 8:36 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 Samantha M. Joslyn Curtis T. Hill, Jr. Law Office of Samantha Joslyn Attorney General of Indiana Rensselaer, Indiana Katherine A. Cornelius Robert J. Henke Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of J.M-C., I.M., July 30, 2019 E.M., B.M., M.F., Ale.F., Court of Appeals Case No. Ala.F., Alin.F., and Alia.F., 18A-JC-2838 Children in Need of Services, Appeal from the T.M., Mother, Jasper Circuit Court The Honorable Appellant-Respondent, John D. Potter, Judge v. Trial Court Cause Nos. 37C01-1806-JC-127 Indiana Department of Child 37C01-1806-JC-128 37C01-1806-JC-129 Services, 37C01-1806-JC-130 Appellee-Petitioner. 37C01-1806-JC-131 37C01-1806-JC-132 37C01-1806-JC-133 37C01-1806-JC-134 37C01-1806-JC-135

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 1 of 11 Kirsch, Judge.

[1] T.M. (“Mother”) appeals from the juvenile court’s order adjudicating her

children to be children in need of services (“CHINS”). Mother raises the

following restated issue for our review: whether the juvenile court erred in its

CHINS determination because the CHINS adjudication was not supported by

sufficient evidence.

[2] We affirm.

Facts and Procedural History [3] Mother has nine biological children (collectively, “the Children”). Tr. at 46.

The father of the four oldest children, J.M-C., I.M., E.M., and B.M., is

deceased. Id. P.F., Mother’s boyfriend (“Boyfriend”), is the father of the

younger five children, M.F., Ale.F., Ala.F., Alin.F., and Alia.F. Id. At the

time the petition was filed, Mother, Boyfriend, and the Children were in the

process of moving from Demotte, Indiana to a house in Hammond, Indiana.

Id. at 50. Boyfriend also has four other children with A.L. Id. at 45. A.L. and

her four children lived in the same house with Boyfriend, Mother, and the

Children. Id. at 50.

[4] Indiana Department of Child Services (“DCS”) received a report on June 4,

2018, about E.M., who was fourteen at the time, and her newborn child. Id. at

45. Two days prior, E.M. had given birth to a child, and a DNA test was

conducted that determined that Boyfriend was the father of E.M.’s child. Id. at

32-33. Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 2 of 11 [5] On June 4, Demotte Police Department Officer Steve Musch (“Officer Musch”)

went to the family’s Demotte home to serve an out of state warrant on

Boyfriend. Id. at 28. Officer Musch had received information that Boyfriend

was “armed and dangerous,” and he and the other officers arrived at the house

in tactical gear. Id. Boyfriend went into the house with B.M., and the Sheriff’s

tactical squad set up a perimeter to surround the house. Id. at 28-29. Mother

arrived at the house with I.M. while the officers were there and attempted to go

into the house, but Officer Musch physically restrained her from entering. Id. at

31. Officer Musch asked Mother about the location of E.M., but Mother

repeatedly told the officer, “don’t say anything to [Boyfriend] cause [sic] he’ll

kill me.” Id. at 32. Boyfriend was eventually arrested, and Mother was

transported to the police station. Id. at 38, 39.

[6] At the police station, DCS family case manager Kris Donahue (“FCM

Donahue”) spoke with Mother in order to locate the rest of the Children. Id. at

47. B.M., I.M., and J.M-C. were at the police station, and E.M. was with her

aunt in Chicago; the location of the rest was unknown. Id. Mother informed

FCM Donahue that the rest of the Children were at a house where the family

was moving to in Hammond, but she could not remember the address. Id. at

48. The police wanted to arrest Mother for resisting law enforcement and

disorderly conduct because of her behavior at the house, but FCM Donahue

requested that she not be arrested so Mother could have custody of the

Children. Id. FCM Donahue then worked with Mother to create a safety plan.

Id. To comply with the safety plan, Mother was not to hinder the criminal

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 3 of 11 investigation and would work with DCS. Id. Mother agreed to bring the

Children to FCM Donahue the next morning for interviews. Id.

[7] Mother did not bring the Children in for interviews the next morning. Id. at 49.

Instead, A.L. transported the Children, and they arrived at the interviews three

hours late. Id. On June 5, 2018, FCM Donahue decided to detain the Children

because of Mother’s lack of compliance with the safety plan and the Children’s

reports of sexual abuse, physical abuse, and neglect. Id. The Children reported

to Donahue that Mother was aware of the abuse and neglect. Id.

[8] On June 6, 2018, DCS filed petitions alleging the Children to be CHINS.

Appellant’s App. Vol. 2 at 84-119. The petitions alleged that the Children suffered

from neglect, physical abuse, and sexual abuse. Id. at 84-85. The petitions

mentioned that Boyfriend had threatened to kill the children and Mother if they

told others about the abuse. Id. at 117.

[9] The petition specifically stated that the Children suffered from educational

neglect. Id. at 116. The Children were not enrolled in school. Tr. at 51. FCM

Donahue asked Mother to provide documents pertaining to the Children’s

education, and Mother provided some attendance records on August 2, 2018.

Id. at 52, 53. Mother told FCM Donahue that the Children had been attending

school online through Khan Academy, which FCM Donahue discovered was

not an accredited school. Id. at 51-52, 76. FCM Donahue evaluated the

attendance records and discovered that the Children had missed many days of

school and that the records only covered two years. Id. at 53. The Children

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 4 of 11 told FCM Donahue that they could not remember the schools they attended,

and FCM Donahue could not locate any school attendance records. Id. at 54.

Only one school had a record of the oldest child, J.M-C., who was seventeen at

the time of the proceedings, attending in fifth grade. Id. at 74.

[10] At the fact-finding hearing on August 8, 2018, FCM Donahue testified about

her experience working with the family. Id. at 46. She stated that Mother had

told FCM Donahue that she was unaware that E.M. was pregnant because she

and Boyfriend sent E.M. to live with Boyfriend’s sister in Chicago. Id. at 47.

FCM Donahue stated that one of the other children, B.M., told her that E.M.

had been sent away in an attempt to “abort the baby.” Id. at 46-47. FCM

Donahue testified that Mother told her she would not “participate in any

services until court ordered.” Id. at 55. FCM Donahue also stated that Mother

failed to abide by the safety plan after Boyfriend’s arrest and refused to provide

immunization records for the Children, which required DCS to have blood

draws taken from the Children to determine if they had been vaccinated. Id. at

55-56. Additionally, Mother was not consistent with information about where

she was living. Id. at 55. Specifically, she provided DCS with an address in

Sauk Village as her home address; however, that address was a vacant

apartment. Id. Because Mother would not give a proper address, DCS was

unable to view her apartment to see whether it was suitable and safe for the

Children. Id. at 56.

[11] At the conclusion of the hearing, the juvenile court found the Children to be

CHINS. In its findings issued on August 17, 2018, the juvenile court found that

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 5 of 11 the Children were CHINS due to E.M. being a victim of sexual violence by a

family member, the Children’s inconsistency in attending school, the Children

reporting incidents of abuse and domestic violence in the home, and Mother

not having a consistent address. Appellant’s App. Vol. 2 at 120-22. Mother now

appeals.

Discussion and Decision [12] Mother argues that the juvenile court’s CHINS determination was clearly

erroneous and not supported by the evidence. To determine if there is sufficient

evidence to support a CHINS determination, this court will not reweigh the

evidence or determine the credibility of witnesses. In re A.R., 110 N.E.3d 387,

400 (Ind. Ct. App. 2018). “We consider only the evidence that supports the

juvenile court’s decision and reasonable inferences drawn therefrom.” Id.

Where a juvenile court’s order contains specific findings of fact and conclusions

thereon, we apply a two-tiered review. Id. We first decide if the evidence

supports the findings and then determine if the findings support the judgment.

Id. A determination that a child is a CHINS will only be reversed if the

determination was clearly erroneous. Id. “A decision is clearly erroneous if the

record facts do not support the findings or if it applies the wrong legal standard

to properly found facts.” Id.

[13] A CHINS proceeding is a civil matter, and DCS bears the burden of proving the

child is a CHINS by a preponderance of the evidence. Id. Under Indiana Code

section 31-34-1-1, a child is a CHINS if, prior to the age of eighteen:

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 6 of 11 (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 the 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.

[14] A child is adjudicated a CHINS under Indiana Code section 31-34-1-3(a) if the

child is under eighteen and is a victim of an offense under section 35-42-4-3,

child molesting, or section 35-42-4-1, rape. Indiana Code section 31-34-1-3

further provides under subsection (b) that a child is a CHINS if the child is

under eighteen and:

(1) lives in the same household as an adult who:

(A) committed an offense described in subsection (a)(1) against a child and is awaiting trial.

Lastly, a child is a CHINS if the child is under eighteen and “lives in the same

household as another child who is the victim of an offense described in

subsection (a)(1).” Ind. Code § 31-34-1-3(c)(1). Here, the juvenile court found

that the Children were CHINS as defined by both Indiana Code section 31-34-

1-1 and Indiana Code section 31-34-1-3.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 7 of 11 [15] Mother argues that the juvenile court erred in finding educational neglect

because the Children were attending the Kahn Academy online. She further

argues that there is no state law that requires the Children to attend an

accredited school. The evidence presented to the juvenile court showed that the

Children did not regularly attend school and had significant absences. Tr. at

51, 53. Although Mother provided DCS with attendance records beginning in

September 2016 and ending in June 2018, no records prior to September 2016

were ever received by DCS. Id. at 53, 54-55. Additionally, while Mother

indicated to DCS that the Children were attending Khan Academy, it is not an

accredited school and not an equivalent to a school curriculum as required by

the Department of Education.1 Therefore, the evidence demonstrated that the

Children did not consistently attend any educational institution. The evidence

presented supported the juvenile court’s finding that Mother did not meet the

educational needs of the Children as required by Indiana Code section 31-34-1-

1.

[16] Mother next contends that the CHINS determination was improper because

there was no evidence that the Children were in physical harm at the time of

removal from the home as the Children did not have any “bruises or signs of

neglect” at that time. We disagree. At the time of removal, the Children

1 Kahn Academy is meant to “fill in gaps in [a student’s] education, not to substitute an education curriculum. See https://www.khanacademy.org/resources/out-of-school-time-programs/khan-academy-in- out-of-school-programs/a/what-do-we-offer-for-out-of-school-programs (last visited July 17, 2019). The program does not meet the standards as stated by the Indiana Department of Education. See https://www.doe.in.gov/standards (last visited July 17, 2019).

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 8 of 11 reported to FCM Donahue that abuse and domestic violence had been

occurring in the home and that Mother was aware of the abuse. Tr. at 49.

Because Mother knew of the abuse and never intervened, this evidence

supported the juvenile court’s findings that the Children’s physical or mental

conditions were seriously impaired or seriously endangered as a result of the

Mother’s inability, refusal, or neglect to supply the Children with the necessary

supervision under Indiana Code section 31-34-1-1.

[17] Mother further asserts that there was no evidence that she was responsible for

the sexual abuse of the Children. “A CHINS proceeding focuses on the best

interests of the children, not the ‘guilt or innocence’ of either parent.” In re

D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017) (citing In re N.E., 919 N.E.2d

102, 106 (Ind. 2010)). “[W]hile the acts or omissions of one parent can cause a

condition that creates the need for court intervention, the purpose of a CHINS

adjudication is to protect children, not to punish parents.” M.K. v. Ind. Dep’t of

Child Servs., 964 N.E.2d 240, 244 (Ind. Ct. App. 2012). Evidence was presented

at the fact-finding hearing that Boyfriend raped E.M. several times a month for

almost two years, beginning when E.M. was only twelve years old. DNA

testing established that Boyfriend was father of E.M.’s child. Ex. Vol. 3 at 7-9,

21. At the time that E.M. was impregnated, she was thirteen years old, and she

gave birth on June 2, 2018, to a full-term infant. Id. at 21. E.M. and all her

siblings and half-siblings lived together with Mother, A.L., and Boyfriend, in

the home in DeMotte for about a year before E.M.’s baby was born. Tr. at 50.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 9 of 11 The State charged Boyfriend with rape, a Level 3 felony, and child molesting, a

Level 1 felony. Ex. Vol. 3 at 13, 19.

[18] The juvenile court found that Boyfriend was charged with rape under Indiana

Code section 35-42-4-1 and child molesting under Indiana Code section 35-42-

4-3; the alleged victim was E.M. Appellant’s App. Vol. 2 at 121. The juvenile

court further found, “There is ample evidence for the court to find that

[Boyfriend] likely committed sexual molestation, sexual battery, and/or sexual

misconduct with a minor child as defined by Indiana law.” Id. Mother denies

knowing that E.M. was even pregnant, but E.M. did not move to Chicago until

February or March 2018, when she was at least six months pregnant. Tr. at 49;

Ex. Vol. 3 at 27-48. Mother’s claim that she was not aware that her daughter

was pregnant is not reasonable based on this evidence.

[19] Under Indiana Code section 31-34-1-3(a), a child is adjudicated a CHINS if the

child is under eighteen and is a victim of child molesting or rape; under

subsection (b), a child is a CHINS if the child is under eighteen and lives in the

same household as an adult who committed child molesting or rape against a

child and is awaiting trial; and, under subsection (c), a child is a CHINS if the

child is under eighteen and lives in the same household as another child who is

the victim of child molesting or rape. Here, the evidence showed that Boyfriend

had been charged with rape and child molesting and the alleged victim was

E.M. At the time that these crimes were alleged to have occurred, all of the

Children lived in the same household with Mother and Boyfriend. This

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 10 of 11 evidence was sufficient to support the juvenile court’s finding that the Children

were CHINS under Indiana Code section 31-34-1-3.

[20] Finally, Mother argues that there was no evidence that the coercive intervention

of the juvenile court is needed to protect the Children. The State rebuts this

argument stating that Mother refused to participate in services without a court

order. Appellee’s Br. at 22. We agree. To determine if coercive intervention is

necessary, the juvenile court must determine if the parents must be coerced into

providing or accepting necessary treatment for their child. In re E.K., 83 N.E.3d

1256, 1262 (Ind. Ct. App. 2017), trans. denied. Here, Mother told FCM

Donahue that she would not cooperate with service providers unless she was

required by court order. Tr. at 55. It is, therefore, clear that the only way the

Children would receive the necessary care and treatment needed would be

through court intervention. There was sufficient evidence that the coercive

intervention of the juvenile court was necessary to protect the Children.

[21] Based on the evidence presented at the fact-finding hearing, we conclude that

the findings of the juvenile court were not clearly erroneous, and the juvenile

court’s findings support its judgment that the Children were CHINS. The

evidence of abuse, both physical and sexual, and of neglect was not only

sufficient, it was overwhelming. We, therefore, affirm the juvenile court’s

judgment.

[22] Affirmed.

Vaidik, C.J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019 Page 11 of 11