In the Matter of: K.B., J.K.E., J.E. & K.E. (Minor Children), Children Alleged to be Children In Need of Services, and A.E. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 30, 2019
• Docket: 19A-JC-1956
• 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 Dec 30 2019, 9:28 am

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 ATTORNEYS FOR APPELLEE David K. Payne Curtis T. Hill, Jr. Braje, Nelson & Janes, LLP Attorney General of Indiana Michigan City, Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: K.B., J.K.E., December 30, 2019 J.E. & K.E. (Minor Children), Court of Appeals Case No. Children Alleged to be Children 19A-JC-1956 In Need of Services, Appeal from the LaPorte Circuit and Court The Honorable Thomas Alevizos, A.E. (Mother), Judge Appellant-Respondent, The Honorable W. Jonathan Forker, Magistrate v. Trial Court Cause Nos. 46C01-1806-JC-72 Indiana Department of 46C01-1806-JC-73 Child Services, 46C01-1806-JC-74 46C01-1806-JC-75 Appellee-Petitioner

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 1 of 11 [1] A.E. (Mother) appeals the trial court’s order finding her four children to be

children in need of services (CHINS), arguing that the evidence is insufficient to

support the adjudication. Finding the evidence sufficient, we affirm.

Facts 1

[2] Mother has four children: K.B., born in May 2008; J.K.E., born in June 2010;

J.E., born in May 2015; and K.E., born in May 2017 (collectively, the

Children). B.E. (Father) is the father of J.K.E., J.E., and K.E., and is married

to Mother.2

[3] Mother, Father, and the Children lived together in the marital home. In May

2018, Father became angry at Mother after seeing some text messages on her

phone and hit her in the head in the presence of the older two children. As a

result of the incident, Father was charged with Level 6 felony domestic battery.

[4] At some point in June 2018, Mother and Father began arguing again. Mother

was afraid that the arguments would escalate, so she left the home and went to

a hotel. On June 16, 2018, Father found the Children home alone. He became

angry and punched a mirror, breaking the mirror and injuring his hand. Father

1 We remind counsel for the State that Indiana Appellate Rule 46(A)(6)(c) states that the statement of facts in an appellate brief “shall be in narrative form and shall not be a witness by witness summary of the testimony.” While that section relates specifically to the appellant’s brief, Rule 46(B) states that the appellee’s brief “shall conform to Section A of this Rule” with certain exceptions not relevant here. 2 Neither Father nor the father of K.B. participates in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 2 of 11 called maternal grandmother (Grandmother) to ask her to get the Children so

that he could go to the hospital for treatment of his injury.

[5] At some point on June 16, 2018, Mother came to Grandmother’s home to get

the Children but Grandmother refused to let them leave with her. Therefore,

Mother called the police, and at some point during the day, a report alleging

neglect or abuse was made to the Department of Child Services (DCS). While

police were there, Mother changed K.E.’s diaper and noticed a severe diaper

rash that she claims appeared overnight; she believed it was severe enough that

it required a trip to the emergency room.3

[6] Mother told the DCS Family Case Manager (FCM) that she has struggled for

years with an opiate addiction and had a prescription for Suboxone to help her

with that struggle. The FCM did a drug screen on Mother on June 16, and

while it was negative for Suboxone, it was positive for amphetamine and

methamphetamine. Father’s drug screen that same day was positive for

amphetamine, methamphetamine, THC, cocaine, and opiates. DCS removed

the Children from their parents’ care and custody and placed them in relative

care with Grandmother.

[7] On June 18, 2018, DCS filed a petition alleging that the Children were CHINS.

At a hearing that occurred the next day, the trial court ordered the parents to

submit to drug screens. Despite that order, neither Mother nor Father

3 Eventually, K.E. received medical treatment and a prescription ointment for the diaper rash.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 3 of 11 submitted to any more drug screens before the factfinding hearing occurred on

September 4, 2018.

[8] After the Children were placed with Grandmother, she was authorized to

supervise their visits with Mother and Father. At some point, DCS changed the

visits to be supervised by an agency. Grandmother reported to a service

provider in July that both parents had left the state to “‘get their life together’”

before spending time with the Children, though they did have phone

conversations with the Children while they were gone. Tr. Vol. II p. 53.

Evidently, despite what they had told Grandmother, the parents did not

actually leave the state. They were aware that they could have supervised visits

at an agency but continued to contact the Children only over the phone. At the

time of the factfinding hearing, the parents had had no face-to-face contact with

the Children in six weeks.

[9] At the time of the factfinding hearing, Mother was living in the marital home.

Father had left the home at Mother’s insistence several days earlier when he

was charged with possession of an unlawful syringe. Mother testified that if she

were to be screened on the day of the hearing, she would be clean. On

September 5, 2018, the trial court found the Children to be CHINS without

issuing any findings of fact or conclusions of law.

[10] A dispositional hearing was held on September 26, 2018. At that hearing, it

was reported that despite Mother’s testimony, the drug screen she completed on

the day of the factfinding hearing had tested positive for methamphetamine.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 4 of 11 Mother and Father submitted to another drug screen on September 13, 2018,

and they both tested positive for methamphetamine, THC, cocaine, and heroin.

The trial court ordered Mother and Father to participate in substance abuse

treatment, individual therapy to address domestic violence, and random drug

screens.

[11] Mother appealed in October 2018. In May 2019, this Court entered a

memorandum opinion remanding the case for the trial court to enter written

findings of fact and conclusions of law as required by Indiana Code section 31-

34-19-10. In re K.B., No. 18A-JC-2603 (Ind. Ct. App. May 28, 2019).

[12] On remand, the trial court entered amended factfinding and dispositional orders

on July 23, 2019. The amended factfinding order focused on the parents’

history and ongoing substance abuse, noting that they both tested positive for

illegal substances on June 16, 2018, when the Children were in Father’s care

(after he found them home alone) and Mother wanted to take the children into

her care (though Grandmother refused). The trial court found that their “drug

use is more than an isolated, one-time event; instead, their use is indicative of a

serious drug addiction problem which requires treatment. Coercive

intervention of the Court is necessary before serious tragedy befalls any of the

children.” Appealed Fact-Finding Order p. 4.

[13] The trial court also expressed concern about violence and anger in the home:

There can be no doubt that the 2 older children witnessing Father hit mother had a negative impact on them. Then, in June, 2018, after Father was released from jail on the domestic battery Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 5 of 11 charge, he and Mother got into an argument. Although Mother tended to downplay the seriousness or severity of this argument in her testimony at the hearing, it was serious enough to cause her to leave the marital home and stay at a hotel. It was also serious enough to lead Mother to observe that the argument scared the children. The concern is that the parents have unresolved anger issues with each other that need to be addressed with therapy or other services which they have not attempted to address on their own.

In addition to the domestic battery and argument incidents noted above, Father, in a fit of anger towards Mother, then broke the bathroom mirror with his fist . . . . And, although the evidence does not indicate whether the children witnessed it, it appears that the children were at least home when Father broke the mirror.

It thus appears that the anger issue is not limited to an isolated, one-time domestic battery event, but that it is an ongoing, festering issue which, if left unchecked and untreated, will only further negatively impact the children’s emotional and mental health, if not also their physical well-being.

Id. at 4-5 (paragraph breaks added). Finally, the trial court noted its skepticism

regarding Mother’s testimony that K.E.’s severe diaper rash had developed

overnight: “common sense and experience dictates [sic] that a rash with such

severity did not develop in an hour or two before the children were discovered

home alone. . . . The real issue is that neither parent had a clue that [K.E.] had

diaper rash, much less severe diaper rash . . . .” Id. at 5. Mother now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 6 of 11 Discussion and Decision [14] Our Supreme Court has explained the nature of a CHINS proceeding and

appellate review of a CHINS finding as follows:

A CHINS proceeding is a civil action; thus, “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). We neither reweigh the evidence nor judge the credibility of the witnesses. Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider only the evidence that supports the trial court’s decision and reasonable inferences drawn therefrom. Id. We reverse only upon a showing that the decision of the trial court was clearly erroneous. Id.

There are three elements DCS must prove for a juvenile court to adjudicate a child a CHINS. DCS must first prove the child is under the age of eighteen; DCS must prove one of eleven different statutory circumstances exist that would make the child a CHINS; and finally, in all cases, DCS must prove the child needs care, treatment, or rehabilitation that he or she is not receiving and that he or she is unlikely to be provided or accepted without the coercive intervention of the court. In re N.E., 919 N.E.2d at 105.

In re K.D., 962 N.E.2d 1249, 1253-54 (Ind. 2012) (footnote and internal header

omitted).

[15] Here, DCS alleged that the Children were CHINS pursuant to Indiana Code

section 31-34-1-1, which provides as follows:

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 7 of 11 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.

Our Supreme Court has interpreted this provision to require “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).

[16] Mother argues that the evidence is insufficient to establish that the Children’s

physical or mental condition is seriously endangered as a result of the actions of

their parents. We disagree.

[17] First, there is evidence in the record of the parents’ serious, ongoing substance

abuse. On the day the Children were removed, Mother tested positive for

amphetamine and methamphetamine and Father tested positive for

amphetamine, methamphetamine, THC, cocaine, and opiates. In the months

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 8 of 11 leading up to the factfinding hearing, both parents refused to submit to further

court-ordered drug screens. At the factfinding hearing, Mother testified that she

would test clean if she were screened that day. But it was revealed at the

subsequent dispositional hearing that in fact, Mother had tested positive for

methamphetamine on the day of the factfinding hearing. Then, just over a

week later, both parents tested positive for methamphetamine, THC, cocaine,

and heroin.

[18] Mother argues that there is no evidence that she used drugs in the presence of or

near the Children. But DCS is not required to make such a showing to support

a CHINS adjudication. This Court has considered and dismissed a similar

argument in In re Des.B., noting that the mother was “an extensive drug user”

and concluding that her “extensive drug use could affect her ability to parent

and her children’s well-being and safety in the home.” 2 N.E.3d 828, 837-38

(Ind. Ct. App. 2014) (internal quotation marks omitted). We echo those same

concerns in this case given the many serious, addictive, and behavior- and

judgment-altering substances at issue.

[19] Furthermore, as noted by the trial court, on the day Grandmother refused to

release the Children into the care of Mother, causing Mother to call the police

in an attempt to get the Children back, Mother tested positive for amphetamine

and methamphetamine. And that same day, the Children had been in Father’s

care—a day when he, too, tested positive for multiple illegal substances. Under

these circumstances, we have little difficulty concluding that the Children’s

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 9 of 11 physical or mental condition is seriously endangered as a result of Mother’s and

Father’s substance abuse.

[20] Second, with respect to domestic violence, the record shows that Father hit

Mother in front of the Children, leading to a domestic battery charge; several

days later, Father and Mother had such a serious argument that it scared the

Children and necessitated Mother checking into a hotel; a few days later,

Father became so angry when he found the Children home alone that he

punched and broke a mirror, causing an injury that was serious enough that he

had to go to the hospital for treatment.

[21] Mother’s attempt to deflect and reframe by focusing only on the “isolated”

physical altercation is unpersuasive. Appellant’s Br. p. 12. There is sufficient

evidence supporting the trial court’s conclusion that there is “an ongoing,

festering issue” of anger and domestic violence that must be addressed to keep

the Children safe. Appealed Fact-Finding Order p. 5. It is well established that

a child’s exposure to domestic violence is serious and traumatic and can

support a CHINS finding. E.g., In re N.E., 919 N.E.2d at 105; see also In re E.M.,

4 N.E.3d 636, 644-45 (Ind. 2014) (“A lack of beatings therefore does not equate

to a lack of abuse, nor does the children’s tender age equate to a lack of harm.

Infants as young as fifteen months exhibit behavioral disturbances from spousal

violence,” including symptoms akin to post-traumatic stress disorder in adults.)

[22] The fact that in this case, the Children have not yet experienced physical or

lasting emotional harm does not mandate a different result. We need not wait

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 10 of 11 until a child is physically or emotionally harmed to intervene; instead, a child is

a CHINS if his or her physical or emotional condition is seriously endangered.

E.g., In re R.P., 949 N.E.2d 395, 401 (Ind. Ct. App. 2011). Here, we find that

the trial court did not err by concluding that the evidence supported precisely

that conclusion.

[23] Finally, as to K.E.’s severe diaper rash, Mother insists that the rash appeared

overnight. The trial court did not find that testimony to be credible given the

severity of the rash, and we will not second-guess that assessment. It may be

true that the rash, standing alone, would not support a CHINS finding, but

here, it is accompanied by a wealth of other evidence of the serious

endangerment of the Children’s physical and emotional well-being.

[24] In sum, we find the evidence sufficient to support the trial court’s conclusion

that the Children are CHINS.

[25] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1956 | December 30, 2019 Page 11 of 11