In the Matter of J.S. (Minor Child) and A.S. (Mother) A.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 11, 2017
• Docket: 32A01-1611-JC-2652
• 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 May 11 2017, 7:01 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 Jeffery A. Earl Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana

David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of J.S. (Minor May 11, 2017 Child) and A.S. (Mother); Court of Appeals Case No. 32A01-1611-JC-2652 A.S. (Mother), Appeal from the Hendricks Appellant-Respondent, Superior Court The Honorable Karen M. Love, v. Judge Trial Court Cause No. The Indiana Department of 32D03-1512-JC-119 Child Services, Appellee-Petitioner

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 1 of 11 [1] A.S. (“Mother”) appeals the trial court’s order adjudicating J.S. (“Child”) a

Child in Need of Services (“CHINS”). She argues the evidence was insufficient

to support the court’s conclusion that the court’s coercive intervention was

necessary. We affirm.

Facts and Procedural History [2] Child was born to Mother and Jo.S. (“Father”) 1 on March 4, 2009. On

November 26, 2015, the Indiana Department of Child Services (“DCS”)

received a report alleging Child was a victim of neglect. Specifically, the report

alleged Mother had taken Child to the Hendricks Regional Hospital Emergency

Room (“ER”) because Mother believed Child had been poisoned with opiates

on her pizza. (App. Vol. II at 14-15.) Upon arriving at the hospital, Child

reported “someone put drugs on her pizza.” (Id.) Medical staff at the hospital

determined Child had a urinary tract infection and pneumonia, but she tested

negatively for opiates.

[3] At the time the report was filed, Mother and Father were separated and

undergoing divorce proceedings. Mother and Child had moved out of the

marital home in July 2015 and had been living at a shelter since then. The

report also alleged Mother had recently pulled Child from her Catholic school

1 Father does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 2 of 11 and was homeschooling Child because Mother believed the school was

“poisoning their pepperonis.” (Tr. at 14.)

[4] Family Case Manager (“FCM”) Brown met with Mother during an

unannounced visit on November 30, 2015. Mother indicated on November 26,

2015, Thanksgiving Day, “she was distracted doing a friend’s nails so she [did

not] know what was in the pizza.” (App. Vol. II at 15.) Mother stated Child

asked “eight times to go to the hospital because her chest was feeling tight and

she didn’t feel well.” (Id.)

[5] On December 11, 2015, DCS received another report Mother had taken Child

to the ER because Child started having a tantrum and hyperventilating, and

Mother believed Child was having trouble breathing. The reporting source

stated that, while at the hospital, Child was not actually having seizures, but

pretended to have seizures, and Mother was “all over that.” (Id.) That same

day, FCM Brown reviewed records from Cummins Behavioral Health, which

indicated Mother was diagnosed with Delusional Disorder.

[6] On December 15, 2015, FCM Brown contacted Father, who stated he was

“very worried about [Child’s] well-being,” (id.), and stated Mother “has a lot of

influence over [Child].” (Id.) FCM Brown also contacted Amy Watts, a

Clinical Service Specialist, who opined “[Mother’s] paranoia, recent trips to the

ER, her comments to the ER staff and her daughter’s reactions to [Mother]

cause her alarm and lead her to believe Mother is unable to care for her child in

a safe and appropriate manner.” (Id.) Watts further opined “even though

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 3 of 11 [Mother] was participating in treatment, she still does not appear to be thinking

in a rational and safe manner.” (Id.) Watts indicated Child’s reactions to

Mother indicate “learned behaviors of how to get Mother’s attention.” (Tr. at

16.) That same day, DCS removed Child from Mother’s care on an emergency

basis and placed Child with Father. DCS requested permission to file a CHINS

petition, and the court granted DCS permission.

[7] On December 16, 2015, DCS filed a petition alleging Child was a CHINS. The

court held an initial detention hearing that same day and found it was in Child’s

best interest to be removed from Mother’s care. The court granted DCS

temporary wardship of Child and authorized Child’s placement with Father to

continue. The court set a fact-finding hearing for February 10, 2016.

[8] At the February 10 hearing, Mother, Father, DCS, each party’s counsel, and

Child’s GAL appeared. The parties agreed to continue the fact-finding hearing

until April 6, 2016, because Mother was scheduled to undergo a psychological

evaluation on February 19 and 22, 2016, and the parties agreed the report of the

evaluation would be useful to the fact-finding hearing.

[9] On April 6, 2016, the court held a contested fact-finding hearing on DCS’s

CHINS petition. The court heard testimony from FCM Brown, FCM Ariel

Irwin-Peel, and Ramona Guthrie, a caseworker at the shelter where Mother

and Child had stayed. On September 26, 2016, the court entered the following

Findings of Fact and Conclusions of Law:

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 4 of 11 6. Mother has a history of intermittent mental health care. Exhibit A is the psychological evaluation of Mother performed by Dr. Sarah J. Szerlong in February 2016. Mother has a long history of seizures beginning at age 15. Mother has been hospitalized 5 times for seizures.

7. Mother was previously diagnosed with personality disorder, schizotypal, paranoid, obsessive compulsive, narcissistic features, as well as rule out diagnosis of psychotic disorder due to medical condition (seizure disorder) and delusions. Mother’s self-report supports a diagnosis of major depression disorder.

8. On December 10, 2015, [Child] was admitted to Hendricks Regional Health. [Child] was hyperventilating and the child stated “I’m having seizures like my mother.” No seizure activity was found by medical personnel. Mother wanted [Child] tested for poisoning. Mother claims that [Child] was poisoned at Sheltering Wings and at school. Medical personnel did not find any indication that [Child] was poisoned.

9. On November 26, 2015, Mother brought [Child] to the Emergency Room at Hendricks Regional Health because Mother thought someone was poisoning [Child]. Mother accused Father of poisoning [Child]’s food multiple times.

10. Ramona Guthrie is a case manager at the protected location where Mother and [Child] lived. Ramona interacted with Mother and [Child] daily. Mother makes accusation[s] about being poisoned a lot. Mother accused Father of molesting [Child]. None of Mother’s allegations were ever substantiated.

11. Father filed for divorce in Grant County and that Court has not decided custody.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 5 of 11 *****

21. DCS has proved by a preponderance of the evidence [that] [Child]’s mental health is seriously impaired or seriously endangered, as a result of Mother’s delusions and accusations. [Child] mimics some symptoms of seizure but she did not have a seizure. [Child] at age 6 has learned how to get her Mother’s attention and the attention of others by faking symptoms of seizures.

22. Mother’s delusions have caused [Child] to be in fear of being poisoned according to Ms. Guthrie. Court finds Ms. Guthrie credible.

23. [Child] is only six years old.

24. Mother’s supervision of [Child] is not appropriate and is unlikely to change without the coercive interaction [sic] of the court.

(App. Vol. II at 29-32.)

[10] On October 26, 2016, the court held a dispositional hearing. 2 Mother contested

Child was a CHINS and maintained she was “mentally and physically capable

of taking care of [Child].” (Tr. at 92.) FCM Irwin-Peel testified Mother was

consistently participating in supervised visits with Child twice-weekly and was

attending services at the shelter. Child was still living with Father. The court

2 The court also held a dispositional hearing on October 19, 2016, at which Father appeared, but Mother did not appear.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 6 of 11 entered a dispositional order adjudicating Child a CHINS and formally

removing her from Mother’s care. The court also entered a parental

participation order for Mother to complete psychological and

neuropsychological evaluations and follow all treatment recommendations,

continue to participate in supervised visits, and follow all terms of the

dispositional decree. Although the court noted Mother’s sexual abuse

allegations against Father were unsubstantiated and Child was permitted to

remain in Father’s care, the court ordered Father to undergo a domestic

violence assessment per DCS’s request. The court further ordered Father not to

allow Mother to visit Child without DCS’s supervision.

Discussion and Decision [11] In reviewing the sufficiency of the evidence supporting a trial court’s CHINS

determination, we “neither reweigh the evidence nor judge the credibility of the

witnesses.” In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014), reh’g denied. Instead,

we consider only the evidence supporting the trial court’s decision and any

reasonable inferences drawn therefrom. Id. at 1287.

[12] Here, the trial court entered sua sponte findings of fact and conclusions of law in

arriving at its determination Child was a CHINS, which is not expressly

required by statute. See id. (“no statute expressly requires formal findings in a

CHINS fact-finding order”). As to these findings, “we apply the two-tiered

standard of whether the evidence supports the findings, and second whether the

findings support the judgment.” Id. However, when, as here, a party

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 7 of 11 challenges the judgment but does not challenge the findings of fact as

unsupported by the evidence, we look only to the findings to determine whether

they support the judgment. Smith v. Miller Builders, Inc., 741 N.E.2d 731, 734

(Ind. Ct. App. 2000).

[13] “Because a CHINS proceeding is a civil action, the State 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); Ind. Code § 31-34-

12-3. Under Indiana Code Section 31-34-1-1, the State had to prove:

(1) Child is less than eighteen years of age;

(2) Child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and

(3) Child needs care, treatment, or rehabilitation that the child is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court.

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

[14] We note the trial court’s CHINS adjudication establishes no culpability on the

part of Mother. See In re N.E., 919 N.E.2d at 105 (“Only when the State moves

to terminate a particular parent’s rights does an allegation of fault attach.”).

“[A] CHINS adjudication is simply that – a determination that a child is in

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 8 of 11 need of services.” Id. A CHINS intervention in no way challenges the general

competency of a parent to continue a relationship with her child. Id.

[15] Here, Mother concedes DCS proved the first two elements under Indiana Code

Section 31-34-1-1. Mother solely argues the evidence was insufficient to

support the trial court’s conclusion Child would unlikely be provided the

needed care, treatment, or rehabilitation without coercive intervention of the

court.

[16] In this case, the basis of DCS’s CHINS petition was its concern Mother’s

mental health was endangering Child. As the trial court found, Mother has

previously been diagnosed with Personality Disorder, Schizotypal Disorder,

paranoia, and Delusional Disorder. Additionally, the trial court noted its

review of Dr. Szerlong’s psychological evaluation of Mother from February

2016, which reported Mother has had seizures since the age of fifteen.

[17] The court’s findings reflect its recognition that Mother’s delusions were

seriously impairing Child’s mental condition and Mother’s supervision of Child

was unsafe and inappropriate. Following this finding, the court noted when

Mother took Child to the ER on December 10, 2015, Child stated she was

“having seizures like [her] mother,” (App. Vol. II at 29), and that at the young

age of six, Child has learned how to get Mother’s attention and the attention of

others by faking symptoms of seizures. The trial court noted Mother’s

delusions have, according to Guthrie, caused Child to be in fear of being

poisoned. The trial court noted Guthrie is the case manager at the shelter

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 9 of 11 where Mother and Child stayed, and Guthrie interacted with Mother and Child

daily from July 2015, when they began staying at the shelter, until December

15, 2015, when the court removed Child from Mother. The court explicitly

found Guthrie credible.

[18] Mother claims the coercive intervention of the court is not necessary because, at

the time the court entered its dispositional order removing Child from her care,

Mother was seeking mental health treatment at Cummins and attending other

counseling services offered by the shelter. We acknowledge and commend

Mother for taking the initiative to improve her mental health and to begin

addressing the concerns that led DCS to file a CHINS petition in this case.

However, Mother’s participation in services alone is not sufficient to find the

trial court’s conclusion was erroneous, because the trial court’s findings support

its conclusion that Mother’s supervision of Child is still inappropriate without

the court’s intervention. We cannot say the court erred. See In re Des.B., 2

N.E.3d 828, 838-39 (Ind. Ct. App. 2014) (affirming trial court’s CHINS

determination where facts most favorable to judgment supported court’s

conclusion).

Conclusion [19] The court’s unchallenged findings support its conclusion Child is a CHINS.

Accordingly, we affirm the trial court’s CHINS adjudication.

[20] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 10 of 11 Brown, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-JC-2652 | May 11, 2017 Page 11 of 11