In the Matter of J.S. (CHINS): S.D. (Mother) and M.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 28, 2020
• Docket: 20A-JC-958
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 28 2020, 8:44 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT S.D. ATTORNEYS FOR APPELLEE Trenna S. Parker Curtis T. Hill, Jr. Noblesville, Indiana Attorney General of Indiana ATTORNEY FOR APPELLANT M.S. Monika Prekopa Talbot Deputy Attorney General Michael C. Price Indianapolis, Indiana Zionsville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of J.S. (Child in September 28, 2020 Need of Services): Court of Appeals Case No. 20A-JC-958 Appeal from the Hamilton Superior S.D. (Mother) and Court M.S. (Father), The Honorable Michael A. Casati, Appellants-Respondents, Judge

v. The Honorable Todd L. Ruetz, Magistrate Trial Court Cause No. The Indiana Department of 29D01-2001-JC-204 Child Services, Appellee-Petitioner.

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-958 | September 28, 2020 Page 1 of 10 Case Summary [1] S.D. (“Mother”) and M.S. (“Father”) appeal the order adjudicating their son,

J.S. (“Child”), a Child in Need of Services (“CHINS”). Mother and Father

challenge the sufficiency of the evidence supporting the CHINS adjudication.

[2] We affirm.

Facts and Procedural History [3] In January 2020, when Child was seven years old, Mother, Father, and Child

traveled by car from California to Indiana. The purpose of the trip was to visit

Mother’s friend, A.S., and explore the possibility of moving to Indiana. When

the family arrived, Child stayed with A.S. Mother and Father initially stayed in

their car and later obtained a hotel room. A.S. noticed that Child did not know

how to brush his teeth and she was concerned about the condition of his teeth.

[4] After about a week in Indiana, Mother informed A.S. of plans to travel back

with Child. On January 28, 2020—while Child was in the care of A.S.—the

Hamilton County Department of Child Services (“DCS”) received a report that

Child was the victim of neglect. Child was evaluated at a hospital, which led to

concerns about severe tooth decay. The next day, DCS filed a petition alleging

that Child was a CHINS, in part, because Child needed “immediate dental care

due to dental care neglect and serious tooth decay.” Mother’s App. Vol. II at

14. During the pendency of the proceedings, Child remained in A.S.’s care.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-958 | September 28, 2020 Page 2 of 10 [5] At an ensuing fact-finding hearing, the trial court heard evidence that Mother

and Father received disability payments and that Child’s dental care was largely

covered under California’s Medi-Cal program. There was also evidence that

Mother and Father had last taken Child to a dentist in June 2019. That dentist

testified by phone, explaining that she did not have concerns about tooth decay

from that exam. DCS presented evidence that, after its involvement, Child was

seen by a pediatric dentist in Indiana. The pediatric dentist testified that Child

had “obvious rampant [tooth] decay” that “was readily apparent” and visible to

the naked eye. Tr. Vol. 2 at 84. The dentist opined that the decay posed “a

high likelihood” of causing “infection into the [jawbone] by where the tooth

roots are” and that this type of infection could be life threatening. Id. at 85-86.

According to the dentist, Child’s tooth decay “is suggestive that there has been

neglect.” Id. at 86. The dentist opined that “[e]ither this decay has been present

and ongoing for quite some time and not treated, or if [Child] presented fine in

July 2019,1 then there’s been a drastic change in the conditions of the oral care.

It has to be one of the two.” Id. at 92. The dentist opined that, of Child’s six

adult teeth, four needed fillings. The dentist further opined that, of Child’s

eighteen baby teeth, twelve to fourteen needed some form of treatment.

[6] The trial court later entered written findings. Among the findings was that

“Child’s teeth are severely decayed” and “Child demonstrated a lack of

knowledge as to how to brush his teeth[.]” Mother’s App. Vol. II at 39. The

1 Although the dentist referred to July 2019, there is no dispute that Child last saw a dentist in June 2019.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-958 | September 28, 2020 Page 3 of 10 court found that Mother and Father had “significantly neglected . . . Child’s

dental health” and that Child’s “physical health is seriously endangered[.]” Id.

The court ultimately adjudicated Child a CHINS. Following a dispositional

hearing, the court entered an order requiring that the “dental work . . . be

performed” and that Mother and Father participate in services. Id. at 41-42.

[7] Mother and Father now appeal.

Discussion and Decision [8] The trial court adjudicated Child a CHINS under Indiana Code Section 31-34-

1-1, which provides as follows:

A child is a [CHINS] 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:

(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:

Court of Appeals of Indiana | Memorandum Decision 20A-JC-958 | September 28, 2020 Page 4 of 10 (A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court.

Our Supreme Court has synthesized this statutory language, explaining that a

CHINS adjudication requires proof of “three basic elements: that the parent’s

actions or inactions have seriously endangered the child, that the child’s needs

are unmet, and (perhaps most critically) that those needs are unlikely to be met

without State coercion.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).

[9] DCS must prove by a preponderance of the evidence that a child is a CHINS.

Ind. Code § 31-34-12-3; In re Eq.W., 124 N.E.3d 1201, 1208 (Ind. 2019). Here,

the CHINS order included special findings—but neither party requested

findings and “no statute expressly requires formal findings in a CHINS fact-

finding order.” In re S.D., 2 N.E.3d at 1287. The instant findings are therefore

sua sponte findings that control only the issues they cover, with a general-

judgment standard controlling any “issues . . . not covered by such findings.”

Ind. Trial Rule 52(D). Where a general-judgment standard applies, we affirm if

the judgment can be sustained on any legal theory supported by the evidence.

Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). As to matters covered by

the findings, we will not “set aside the findings or judgment unless clearly

erroneous.” T.R. 52(A). Under this standard, we will affirm if the evidence

supports the findings and the findings support the judgment. Steele-Giri v. Steele,

51 N.E.3d 119, 123 (Ind. 2016). Moreover, in conducting our appellate review,

Court of Appeals of Indiana | Memorandum Decision 20A-JC-958 | September 28, 2020 Page 5 of 10 we will not reweigh evidence, id. at 124, and we must give “due regard” to the

opportunity of the trial court to judge the credibility of witnesses, T.R. 52(A).

Neglect [10] Focusing on the first subsection of the foregoing CHINS statute, Mother and

Father challenge the sufficiency of the evidence of neglect. Father directs us to

evidence that a dental exam should be conducted every six months and that

only seven or so months had passed since Child’s last exam. Moreover, Mother

and Father assert that the previous exam was normal and that they should be

permitted to rely on that exam. Father also points out that a trained dentist

used x-rays and special tools to understand the scope of Child’s tooth decay.

According to Father, the trial court essentially required that Mother and Father

have expert knowledge of dental health rather than lay parental knowledge.

Father also directs us to favorable evidence that Child had not reported pain

and that the hospital nurse might not have called DCS based on the decay.

Father also points out that Child saw a physician in December 2018—about a

year before DCS intervention—and there is no indication of dental concerns at

that time. Father also notes that, after the family arrived in Indiana, A.S. did

not immediately take Child to a dentist or immediately report concerns to DCS.

[11] At bottom, Mother’s and Father’s arguments amount to requests to reweigh the

evidence, which we must decline. Ultimately, there is evidence indicating that

Child presented normal in June 2019 and had a drastic decline in dental health

that warranted intervention. Although the pediatric dentist used tools to assess

Court of Appeals of Indiana | Memorandum Decision 20A-JC-958 | September 28, 2020 Page 6 of 10 the scope of the tooth decay, there is nevertheless evidence that the decay was

“obvious” and “rampant”—visible to the naked eye. Tr. Vol. 2 at 84. There is

also evidence that Child lacked the basic skills to properly care for his teeth.

[12] We disagree with Father’s contention that requiring a parent to investigate the

changing appearance of teeth is tantamount to requiring expert knowledge.

Further, we are not persuaded by Father’s argument that In re A.H. militates

toward reversing the instant CHINS adjudication. 58 N.E.3d 951 (Ind. Ct.

App. 2016). In that case, a parent pursued various treatment options to address

a child’s mental-health needs. See id. at 954-55. Despite the treatment, the

child continued to need mental-health care and she was adjudicated a CHINS

based on that need. See id. This Court reversed, reasoning that a parent is not

neglectful just because a sick child is not responding to medical care. See id. at

955. Here, however, the evidence indicates that Mother and Father failed to

intervene and seek care for Child despite visible signs of declining dental health.

[13] We conclude that there is sufficient evidence that Mother and Father neglected

Child’s dental health, thereby seriously endangering Child due to the risk of

infection. We ultimately identify sufficient evidence supporting the elements

set forth in the first subsection of the CHINS statute. See I.C. § 31-34-1-1(1).

Coercive Intervention [14] As to the second subsection of the CHINS statute, Mother and Father do not

dispute that Child needs dental care. Rather, they argue that there is no need

for the court’s coercive intervention. “When determining CHINS status under

Court of Appeals of Indiana | Memorandum Decision 20A-JC-958 | September 28, 2020 Page 7 of 10 [Indiana Code] Section 31-34-1-1, particularly the ‘coercive intervention’

element, courts ‘should consider the family’s condition not just when the case

was filed, but also when it is heard.’” In re D.J., 68 N.E.3d 574, 580-81 (Ind.

2017) (quoting In re S.D., 2 N.E.3d at 1290). This approach “avoids punishing

parents for past mistakes when they have already corrected them.” Id.

[15] Mother and Father direct us to favorable evidence indicating that they wanted

to return to California and would pursue dental treatment when they returned.

Mother points out that, despite Child’s fear of dental procedures, Mother and

Father had taken Child to the dentist. Mother argues that DCS should have

spent more time investigating Child’s prior care. As to Father, he argues that

Child “was not in [parental] care at any point after he was taken to the

hospital” and that placing Child in parental care would have “test[ed] whether

[Mother and Father] would or would not provide [medical] care.” Father’s Br.

at 20. Both Mother and Father direct us to In re S.D. for the proposition that

“[n]ot every endangered child is a [CHINS], permitting the State’s parens patriae

intrusion into the ordinarily private sphere of the family.” 2 N.E.3d at 1287.

[16] Father points out that Mother and Father complied with information requests

and went to the hospital when Child was taken there. According to Father,

their “habit to follow through on items requested for [Child] or by the State is

consistent” and “[t]here is no evidence that, given the chance and opportunity,

the parents would not have followed through similarly in having [Child] seen

by their family dentist or some other provider.” Father’s Br. at 21. Father also

asserts that DCS intervention impeded treatment because Medi-Cal would have

Court of Appeals of Indiana | Memorandum Decision 20A-JC-958 | September 28, 2020 Page 8 of 10 covered the treatment if the family was “only allowed to go home.” Id. at 22.

Father likens the circumstances to those in In re S.D., where our Supreme Court

reversed in part by attributing delay in progress to DCS. 2 N.E.3d at 1289-90.

[17] Focusing on favorable evidence, Mother and Father essentially argue that they

were eager and ready to address Child’s medical needs. Along these lines,

Father directs us to a string of cases standing for the general proposition that,

where a parent faces struggles but is equipped to attend to a child’s needs, the

Child is not a CHINS. See Br. of Father at 18-19 (citing In re S.D., 2 N.E.3d at

1285-86; In re M.K., 964 N.E.2d 240 (Ind. Ct. App. 2012); In re S.K., 57 N.E.3d

878 (Ind. Ct. App. 2016); and In re S.M., 45 N.E.3d 1252 (Ind. Ct. App. 2015)).

[18] First, we disagree with Father’s suggestion that Child should have been placed

with Mother and Father so they could demonstrate attention to Child’s needs.

As our Supreme Court has explained, “the purpose of a CHINS adjudication is

to protect children, not punish parents.” In re N.E., 919 N.E.2d 102, 106 (Ind.

2010). Here, Child’s dental needs arose through six months of neglect, and the

court need not wait for Mother and Father to demonstrate a different pattern of

dental care. See generally In re R.S., 987 N.E.2d 155, 158 (Ind. Ct. App. 2013)

(noting that a court “need not wait until a tragedy occurs to intervene” through

a CHINS adjudication). Moreover, although there was favorable evidence that

Mother and Father would address Child’s immediate needs in California, it is

not as though treatment alone would protect Child. Rather, in addition to

needing immediate dental care, Child needs parents who are committed to

Court of Appeals of Indiana | Memorandum Decision 20A-JC-958 | September 28, 2020 Page 9 of 10 instilling a regimen of dental hygiene and who are attuned to Child’s ongoing

health needs—i.e., prepared to take proactive measures to avoid future harm.

[19] Ultimately, we are not at liberty to reweigh the evidence. In light of the

evidence that Child was endangered due to the cumulative effect of six months

of parental neglect, we cannot say that the court clearly erred by determining

that Child’s needs were unlikely to be met without the coercion of the court.

[20] All in all, we conclude that there is sufficient evidence that Child is a CHINS. 2

[21] Affirmed.

Vaidik, J., and Weissmann, J., concur.

2 Having concluded that the evidence is sufficient to support a CHINS adjudication on grounds related to Child’s dental health, we need not address arguments regarding any other grounds. See, e.g., In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (regarding a finding as surplusage where there was “evidence sufficient to support the trial court’s ultimate findings on the elements necessary to sustain the judgment”), trans. denied.

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