IN THE MATTER OF: K.S. (Minor Child), A Child in Need of Services and A.H. (Father) v. The Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 11, 2020
• Docket: 19A-JC-2957
• 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 Jun 11 2020, 8:55 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 ATTORNEY FOR APPELLEE Brian A. Karle Katherine A. Cornelius Lafayette, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF: June 11, 2020

K.S. (Minor Child) Court of Appeals Case No. 19A-JC-2957 A Child in Need of Services Appeal from the Marion Superior and Court Juvenile Division The Honorable Mark A. Jones, A.H. (Father), Judge Appellant-Respondent Honorable Beth Jansen, Magistrate Trial Court Cause No. 49D15-1906-JC-1590 v.

The Indiana Department of Child Services Appellee-Petitioner

and

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 1 of 12 Child Advocates, Inc., Appellee-Guardian ad Litem

Altice, Judge.

Case Summary

[1] A.H. (Father) appeals the trial court’s adjudication of his infant child K.S.

(Child) as a Child in Need of Services (CHINS).

[2] We affirm.

Facts & Procedural History

[3] Child was born to L.S. (Mother) on May 25, 2019. Mother, who suffered from

untreated mental illness and substance abuse, became overwhelmed caring for

Child. On June 18, 2019, Mother took Child to a well check and made

statements to medical staff that prompted an immediate report to the Indiana

Department of Child Services (DCS).

[4] Bailey Sandlin, a DCS assessment worker, responded to Methodist Hospital

that same day and interviewed Mother, who was at the hospital with Child.

Mother reported to Sandlin that she felt stressed and overwhelmed, especially at

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 2 of 12 night with Child. Mother also reported a history of mental illness for which she

was not currently receiving treatment. Of particular note, Mother indicated

that she had had thoughts of harming Child by either holding her hand over

Child’s mouth and nose or throwing her to the ground. Mother also

acknowledged a history of substance abuse, including methamphetamine.

[5] Mother reported two potential fathers for Child, Father and A.L. Sandlin

interviewed both men at the hospital that day. Father told Sandlin that he was

not sure that he was Child’s father, that he had other children, and that he was

not sure what his involvement was going to be with Child. Father submitted to

a drug screen, the results of which were never admitted into evidence at the

CHINS hearing, but Sandlin testified that she had substance abuse concerns

related to Father at the time.

[6] On the evening of June 18, 2019, as a result of her assessment, Sandlin took

Child into emergency custody. Child was placed in relative care with Mother’s

aunt (Aunt). Sandlin then filed a CHINS petition.

[7] Father did not appear at the initial hearing on June 21, 2019, where the court

determined that Child should remain with Aunt. On July 10, 2019, Father and

A.L. (the other potential father) appeared for the continued initial hearing. The

court appointed counsel for the men and ordered them to submit to DNA

testing to determine paternity. On July 25, 2019, Father was determined to be

Child’s biological father, and A.L. was dismissed from the case.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 3 of 12 [8] At a pretrial hearing on July 31, 2019, the parties requested mediation, which

the court ordered. Additionally, the court authorized Aunt to supervise

parenting time for Father. Father visited with Child twice after this date, with

the last visit in mid-September. Neither Mother nor Father appeared for the

mediation on September 4, 2019.

[9] In the meantime, Mother was charged with possession of cocaine on August

26, 2019, and then prostitution on September 11, 2019. She failed to appear for

a hearing in the former criminal case and was arrested and held in jail for most

of September until bonding out near the end of the month.

[10] Mother did not appear for the CHINS factfinding hearing on October 2, 2019,

which was rescheduled for two weeks out due to her absence. Father was

present with appointed counsel and expressly did not object to the continuance.

[11] The factfinding took place on October 16, 2019. Mother again did not appear.

Her counsel’s request to withdraw was granted by the court. Father also did

not appear, and his counsel did not know Father’s whereabouts and had been

unable to reach him. The court denied a request for another continuance.

[12] Bailey Sandlin testified regarding her initial investigation as outlined above.

Three service providers referred for Mother then testified, indicating that

Mother had not complied with services since August. Specifically, Mother’s

homebased caseworker Dekkia Thomas testified that Mother had been

noncompliant with homebased services since early August, was a no show for a

scheduled psychological evaluation, and had reported to Thomas that she was

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 4 of 12 “fed up with everything” and did not care to reunify with Child. Transcript at

26. Further, the visitation facilitator testified that Mother had not visited Child

since August and came to a visit “irate” and “appeared [to be] high.” Id. at 28.

Mother did not have a permanent residence.

[13] Aunt testified regarding both Mother and Father. She noted Mother’s drug use

and indicated that she feared for Child’s safety with Mother. Aunt had last seen

Mother in August when Mother came to a visit “high, very loud abusive [sic] to

Aunt and the visiting coordinator.” Id. at 30. With respect to Father, Aunt

testified that Mother and Father had previously dated for about a year. Father

had visited Child only twice, with the most recent visit being about a month

before the factfinding hearing. Aunt indicated that he was attentive and

appropriate with Child, but she was concerned about him “financially and

stability wise.” Id. Father had informed Aunt that “his income right now is a

mess” and “he’s going from job to job.” Id. at 31. Father told Aunt that he was

trying to become a commercial truck driver, which would require him to be

away from home and Child for three out of four weeks each month. He asked

Aunt if she would be willing to keep Child when he was on the road.

[14] DCS family case manager (FCM) Kimberly Martin, who took over the case on

October 4, 2019, testified that she had been unable to reach Father despite

calling him at least five times since that time. He never returned her calls and

she did not have an address for him, so FCM Martin was unable to determine

Father’s housing, employment, or financial situation. FCM Martin testified

that she had seen a report indicating Father had used cocaine, but she

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 5 of 12 acknowledged that his recent drug screen showed nothing that concerned her

regarding his sobriety.

[15] Based on the evidence presented at the hearing, the trial court adjudicated Child

a CHINS and set the matter for disposition. Father (as well as Mother) did not

appear at the scheduled dispositional hearing on November 13, 2019, so the

court reset the hearing for a week later. Still, Father (and Mother) did not

appear on November 20, 2019. Father’s counsel indicated that Father was at

work. With respect to Father, DCS asked the court to order completion of a

Father Engagement Program and random drug screens. Father’s counsel

agreed that those services would be appropriate and asked for increased

parenting time. With respect to parenting time, the GAL indicated that Father

had only visited Child twice in the last five months and, thus, recommended

supervised visits. Additionally, FCM Martin noted that she had still been

unable to reach Father. Ultimately, the court ordered the agreed-upon services

for Father, authorized increased parenting time upon the recommendation of

the treatment team, and ordered DCS to make an effort to conduct a home

study with Father’s assistance. Child remained in relative care.

[16] Father now appeals, arguing that DCS failed to prove that Child was a CHINS

pursuant to Ind. Code § 31-34-1-1. Additional information will be provided

below as needed.

Discussion & Decision

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 6 of 12 [17] DCS bears the burden of proving that a child is a CHINS by a preponderance of

the evidence. In re S.A., 15 N.E.3d 602, 607 (Ind. Ct. App. 2014), clarified on

reh’g, 27 N.E.3d 287 (2015), trans. denied. On review of a CHINS

determination, we do not reweigh the evidence or assess witness credibility. Id.

Rather, we consider only the evidence in favor of the trial court’s judgment and

all reasonable inferences derived from that evidence. Id.

[18] Where the trial court enters findings of fact and conclusions, as in this case, we

apply a two-tiered standard of review, first considering whether the evidence

supports the factual findings and then whether those findings support the

judgment. Id. “We will set aside the trial court’s findings and conclusions only

if they are clearly erroneous and a review of the record leaves us firmly

convinced that a mistake has been made.” Matter of K.P.G., 99 N.E.3d 677,

681-82 (Ind. Ct. App. 2018), trans. denied. Findings are clearly erroneous only

when the record contains no evidence to support them either directly or by

inference, and a judgment is clearly erroneous if it relies on an incorrect legal

standard. Id. at 682.

[19] To meet its burden of establishing Child’s CHINS status, DCS was required to

prove by a preponderance of the evidence:

(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 … to supply the child with necessary food, clothing, shelter, medical care, education, or supervision:

(A) when the parent … is financially able to do so; or

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 7 of 12 (B) due to the failure, refusal, or inability of the parent … to seek financial or other reasonable means to do so; 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.

I.C. § 31-34-1-1. In sum, I.C. § 31-34-1-1 “requires 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).

[20] Our Supreme Court has explained:

[A] CHINS determination establishes the status of a child alone. Because a CHINS determination regards the status of the child, a separate analysis as to each parent is not required in the CHINS determination stage. … [T]he conduct of one parent can be enough for a child to be adjudicated a CHINS. Indeed, to adjudicate culpability on the part of each individual parent in a CHINS proceeding would be at variance with the purpose of the CHINS inquiry: determining whether a child’s circumstances necessitate services that are unlikely to be provided without the coercive intervention of the court. Said differently, the purpose of a CHINS adjudication is to protect children, not punish parents. The resolution of a juvenile proceeding focuses on the best interests of the child, rather than guilt or innocence as in a criminal proceeding.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 8 of 12 In re N.E., 919 N.E.2d 102, 106 (Ind. 2010) (citations omitted); see also K.P.G.,

99 N.E.3d at 682 (“Although the acts or omissions of one or both parents can

cause a condition that creates the need for court intervention, the CHINS

designation focuses on the condition of the children rather than on an act or

omission of the parent(s).”).

[21] Here, DCS established that prior to removal, Child was in the care of Mother

who was suffering from untreated mental illness and was overwhelmed caring

for Child. Mother reported thoughts of harming Child by suffocation or by

throwing her to the ground. Additionally, Mother has a history of substance

abuse and was arrested and criminally charged twice during the underlying

proceedings. Aside from the first month or so following Child’s removal,

Mother has not participated in services and she failed to appear for the

September mediation or any subsequent CHINS hearings, including the

factfinding hearing in October and dispositional hearing in November.

[22] Though a tad more involved in the CHINS matter, Father similarly failed to

appear for the mediation, factfinding hearing, and dispositional hearing. He

also did not return any of the numerous calls made to him by FCM Martin,

who had only a phone number for him and no address. By the time of the

factfinding hearing (and the subsequent dispositional hearing), Father had only

visited with Child twice. He was loving and appropriate with Child but

expressed to Aunt serious concerns regarding his current financial stability.

Instead of continuing to jump from job to job, Father told Aunt that he was

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 9 of 12 trying to become a commercial truck driver, which would require him to be on

the road for three out of four weeks each month.

[23] On appeal, Father challenges portions of two of the trial court’s findings. First,

at the end of Finding #8, the trial court indicated that Sandlin, during her initial

assessment, “had concerns about [Father’s] drug use.” Appendix at 138. This

finding is supported by the evidence, as Sandlin expressed this general concern

during her testimony. Moreover, we observe that the court made no findings

regarding actual drug use by Father. In fact, in Finding #16, the trial court

found that Mother needed, among other services, drug screens and that Father

required only homebased casework.

[24] Father also challenges the portion highlighted below of Finding #14:

[Aunt] is the relative care giver for this child. [Aunt] states that the Mother is currently abusing drugs and she lacks the patience necessary to properly parent the child. [Aunt] has concerns for the safety of the child if placed in the care of Mother. [Aunt] knows [Father] and she knows that financially he cannot provide for this child. [Aunt] and [Father] have talked about the child remaining in her care while [Father] was on the road. [Father] last saw the child about one month ago and although he was appropriate during visits, his absence today is problematic.

Id. (emphasis supplied). Aunt testified that she knew Father and that he had

discussed his financial situation with her. Based on these discussions, Aunt

expressed concern regarding Father’s financial stability and testified that

Father’s “income right now is a mess” and that “he’s going from job to job.”

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 10 of 12 Transcript at 31. In light of Aunt’s testimony regarding Father’s current

financial stability, we cannot say that the court’s finding is clearly erroneous.

[25] The facts and circumstances before the trial court amply established that Child

is a CHINS. Indeed, on appeal, Father does not dispute that Child was

seriously endangered while in Mother’s care or that Mother is unlikely to

provide Child’s needed care without court intervention. Father, rather, suggests

that he can provide the care Child needs and do so without court intervention.

We certainly hope that Father can do so in the near future, but the evidence

establishes that this is not yet the case. As outlined above, Father had (1)

visited Child only twice during the CHINS proceedings and expressed

significant financial instability to Aunt during those visits, (2) not responded to

calls from FCM Martin, making it difficult for her to assess his current ability to

care for Child, and (3) not attended the factfinding hearing (or the prior court-

ordered mediation or the subsequent dispositional hearing). DCS established

by a preponderance of the evidence that Father is unlikely to meet Child’s needs

absent coercive court intervention.1

1 Father’s attempt to liken this case to S.A., 15 N.E.3d 602, is unavailing. In S.A., the father had been absent for the first two years of his child’s life while serving active duty in the United States Navy. When the child was almost two years old, a CHINS petition was filed due to the mother’s drug use and neglect. Thereafter, the father established paternity and, after being discharged from the Navy later that month, moved back to Indiana, found employment and housing, contacted DCS and the CASA, and visited his child daily. The father also attended a child and family team meeting with DCS before the factfinding hearing. The father testified at the factfinding hearing and expressed an ability and desire to parent his child. Based on the evidence, this court reversed the CHINS adjudication because DCS had failed to establish that the father was not likely to meet his child’s needs absent coercive court intervention. Unlike the father in S.A., Father’s actions throughout the CHINS case, including his lack of communication with DCS and his failure to attend

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 11 of 12 [26] Judgment affirmed.

Bailey, J. and Crone, J., concur.

the factfinding hearing, demonstrate an inability or unwillingness to care for Child and provide for Child’s needs without the coercive intervention of the court.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020 Page 12 of 12