In the Matter of L.C. (Child in Need of Services) and R.C. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 30, 2019
• Docket: 19A-JC-839
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Sep 30 2019, 11:08 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel G. Foote Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of L.C. (Child in September 30, 2019 Need of Services) Court of Appeals Case No. 19A-JC-839 and Appeal from the Marion Superior R.C. (Father), Court Appellant-Respondent, The Hon. Mark Jones, Judge The Hon. Rosanne Ang, v. Magistrate Trial Court Cause No. Indiana Department of Child 49D15-1811-JC-2775 Services, Appellee-Petitioner,

and

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 1 of 12 Child Advocates, Inc.,

Guardian Ad Litem.

Bradford, Judge.

Case Summary [1] L.C. (“Child”) was born to R.C. (“Father”) and S.E. (“Mother”1; collectively,

“Parents”) in July of 2018. In November of 2018, the Indiana Department of

Child Services (“DCS”) petitioned to have Child adjudicated a child in need of

services (“CHINS”) following a suicide attempt by Mother and based on

allegations that neither Mother nor Father could ensure Child’s safety. Parents

both have a history of mental illness, and Father unilaterally stopped taking

medication to address his major depressive disorder and has not sought medical

treatment since mid-2018. Following an evidentiary hearing in February of

2019, the juvenile court adjudicated Child to be a CHINS and, inter alia,

ordered that Child be placed with Father’s parents, with whom he and Child

were already residing. Father contends that (1) two of the juvenile court’s

findings are contrary to the evidence, (2) two of the juvenile court’s conclusions

of law are clearly erroneous, and (3) the juvenile court abused its discretion in

removing Child from Father’s care. Because we disagree, we affirm.

1 Mother does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 2 of 12 Facts and Procedural History [2] Child was born to Mother and Father on July 25, 2018. In November of 2018,

Parents and Child were living with Mother’s other child, M.E., and Father’s

parents (“Parental Grandparents”) in their home. On November 13, 2018,

DCS filed a CHINS petition alleging that Child was a CHINS as to Mother

because Mother had failed to provide Child with an appropriate living

environment, had untreated mental-health issues, and had slit her wrist in front

of M.E. in an attempt to kill herself. As for Father, DCS alleged that he had

not demonstrated an ability to ensure Child’s safety and well-being while she

was in Mother’s care.

[3] On November 14, 2018, the juvenile court held an initial/detention hearing and

authorized Child’s continued placement in Father’s care on a temporary in-

home trial visit. Also that day, Father requested home-based therapy and

informed the juvenile court “of several medical issues he is currently dealing

with[.]” Appellant’s App. Vol. II p. 50. The juvenile court ordered Father to

participate in home-based therapy. After DCS became involved and removed

M.E.,2 Mother moved out of Paternal Grandparents’ home. On December 7,

2018, Mother admitted that Child and M.E. were CHINS because Mother

needed assistance in addressing her mental health. The juvenile court took

Mother’s admission under advisement.

2 As of the disposition of this case, M.E. remains in a foster placement.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 3 of 12 [4] Around the same time, Jennifer Colasessano began providing home-based

therapy to Father and determined that he suffered from major depressive

disorder. Colasessano began working with Father to address his disorder and

“emotion management, emotion expression, stress management,” past

traumatic experiences, anxiety, and substance use. Tr. Vol. II p. 78. Father

also began receiving home-based case management through Tatyana Terrell in

December of 2018. Terrell met with Father once or twice a week initially.

Father’s goals were to stay organized with a schedule, and to provide for

Child’s needs.

[5] On February 5, 2019, Parents were involved in an altercation with each other.

Father picked Mother up from the hospital where she was seeking treatment

after “she had taken an entire prescription pill bottle” and, on the way home,

they began to argue. Tr. Vol. II p. 109. Father threatened Mother “three or

more times that he would wreck the truck” and Mother either had to push the

steering wheel or scream in order to prevent a crash. Father also threatened to

kill Child to prevent Mother from seeing her and said that he could avoid jail if

he killed himself as well.

[6] On February 15, 2019, the juvenile court held an evidentiary hearing regarding

Father. At the time of the hearing, Child was still placed with Father in

Paternal Grandparents’ home. Mother testified that Father has threatened to

kill himself if she left him and that she had safety concerns regarding Child

being with Father. DCS family case manager Dominique Cox (“FCM Cox”)

also expressed concerns, testifying that Father’s mental-health issues remained

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 4 of 12 unresolved. (Tr. 63). FCM Cox testified that Father disclosed that he has had

mental-health diagnoses in the past for which he used to be medicated and is

receiving home-based therapy to address his anxiety and depression.

[7] Colasessano testified about Father’s history of mental-health issues, noting that

he has been diagnosed with major depressive disorder and had experienced “a

cycle of anxiety and depression[.]” Tr. Vol. II p. 84. As for addressing his

mental-health issues, Father admitted that he had stopped taking his medication

and that it had “been awhile” since he had sought mental-health services,

perhaps last in June or July of 2018. Tr. Vol. II p. 114. When asked whether

he was currently seeing a doctor to address the issues with his medication, he

said “no[.]” Tr. Vol. II p. 117. Terrell testified that she had not successfully

closed out Father’s care and that he still needs work.

[8] As it happened, neither Colasessano nor Terrell had been aware before the

hearing that Father had tried to wreck the car with Mother in it or that Father

had threatened to kill Child. Colasessano testified that suicidal or homicidal

ideations could be indicative of mental-health issues, and Terrell testified that

“[i]t would be a huge concern” if Father had done what Mother said he did.

Tr. Vol. II p. 101.

[9] After the evidentiary hearing, the juvenile court adjudicated Child to be a

CHINS as to Father. The juvenile court also ordered that Child’s placement be

changed to Paternal Grandparents, authorized Father to continue living in their

home, and ordered that his time with Child be “strictly supervised[.]”

Appellant’s App. Vol. II p. 109. On March 15, 2019, the juvenile court entered

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 5 of 12 its CHINS order, dispositional decree, and parental participation orders. The

juvenile court’s CHINS order provides, in part, as follows:

3. The DCS became involved with [Child] after [Mother] attempted suicide in front of [Child]’s four-year-old sibling. [Mother] was taken to Community North Hospital for treatment. [Child] was in the home when this incident occurred. 4. During the pendency of this cause of action, [Child] was placed in the care of [Father]. 5. [Father] has been consistently engaged in home[-]based case management and home[-]based therapy since the end of December. 6. The Department of Child Services is concerned about [Father]’s mental health. On February 5, 2019, an incident occurred between [Father] and [Mother] while the two were in a vehicle. During an argument between the two, [Father] attempted to crash the vehicle multiple times. During this incident, [Father] also threatened to kill [Child, Mother] and himself. 7. [Father] has a long history of mental health needs. [Father has] been diagnosed with Major Depressive Disorder, struggles with anxiety and has ceased taking his prescribed medication. [Father]’s last contact with his mental health provider was over nine months ago. 8. [Child]’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of [Child]’s parent, guardian, or custodian to supply [Child] with necessary food, clothing, shelter, medical care, education, or supervision. [Father] has untreated mental health needs which have led him to threaten to take the life of his child. 9. [Child] needs care, treatment, or rehabilitation that the child is not receiving[] and is unlikely to be provided or accepted

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 6 of 12 without the coercive intervention of the Court. [Father] has ceased his mental health treatment. The coercive intervention of this Court is necessary to compel [Father] to engage in this needed treatment. Appellant’s App. Vol. II p. 138.

[10] The juvenile court continued Child’s relative placement with Paternal

Grandparents with the permanency plan being reunification with Parents. In

Father’s parental-participation order, the juvenile court ordered Father to

continue home-based therapy and home-based case management, complete a

psychological evaluation and follow all recommendations, and complete

community mental-health services and follow all recommendations.

Discussion and Decision [11] Indiana Code section 31-34-1-1 provides that a child is a CHINS before the

child becomes eighteen years of age if

(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. [12] The purpose of a CHINS adjudication is to “protect children, not [to] punish

parents.” In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 580–81 (Ind.

2017) (citations omitted). DCS bears the burden of proving that a child is a

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 7 of 12 CHINS by a preponderance of the evidence. Ind. Code § 31-34-12-3; see also In

re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The Indiana Supreme Court has

stated that

[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 [juvenile] court’s decision and reasonable inferences drawn therefrom. Id. We reverse only upon a showing that the decision of the [juvenile] court was clearly erroneous. Id. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (footnote omitted). Father

contends that (1) two of the juvenile court’s findings are contrary to the

evidence, (2) the juvenile court’s conclusions that Child’s physical or mental

condition is seriously impaired or endangered and that Child needs care or

treatment that Father is unable or unwilling to provide without coercive

intervention are clearly erroneous, and (3) the juvenile court abused its

discretion in removing Child from Father’s care.

I. Challenged Findings [13] Father contends that the juvenile court’s finding regarding the February 5,

2018, incident is unsupported by the record. Mother, however, testified that

during the incident, Father threatened Child’s life and tried to wreck the car

several times on the way home. Regarding the threat, Mother testified that

[a]t one point he had stated that he was not going to allow me to see [Child]. When I told them that by law—when I told him that

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 8 of 12 by law he cannot do that. He said, “I can if I kill her.” I said, “You will go to jail.” He said, “Not if I kill us both.” Tr. Vol. II p. 76. While Father testified that the altercation occurred differently,

the juvenile court was under no obligation to credit his version of events and

did not. See, e.g., Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)

(“[F]actfinders are not required to believe a witness’s testimony even when it is

uncontradicted.”). Father is requesting that we reweigh the evidence, which we

will not do.

[14] Moreover, the record contains ample evidence to support a finding that Father

had a history of mental-health issues that has yet to be adequately addressed.

FCM Cox testified that Father disclosed that he has received diagnoses of

anxiety and depression, for which Father was prescribed medication that he

unilaterally stopped taking. Colasessano testified about Father’s history of

mental-health issues, noting that he has been diagnosed with major depressive

disorder and anxiety. Father admitted that he had unilaterally stopped taking

his medication and that he had not sought mental-health services since mid-

2018. Father also admitted that he was not currently under the care of a doctor.

Father is again asking us to reweigh the evidence, which we will not do. See In

re K.D., 962 N.E.2d at 1253.

II. Challenged Conclusions A. Child’s Physical or Mental Condition Is Seriously Impaired or Endangered [15] Father challenges the juvenile’s conclusion that Child’s physical or mental

condition is seriously impaired or endangered. As mentioned, the juvenile

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 9 of 12 court found that Father threatened to kill Child ten days before the evidentiary

hearing to prevent Mother from seeing her, which certainly supports a

conclusion that her physical condition is endangered. A juvenile court need not

wait until a tragedy occurs before adjudicating a Child a CHINS. In re R.S., 987

N.E.2d 155, 158 (Ind. Ct. App. 2013). Father has not established that the

juvenile court’s decision to treat this threat seriously was clearly erroneous.

[16] Moreover, as mentioned, the record contains ample evidence that Father suffers

from unresolved mental-health issues. Father’s home-based therapist diagnosed

him with major depressive disorder, and, although he had been taking medicine

to help him cope with his mental-health issues, he had stopped by the time DCS

became involved. Father’s unresolved mental-health issues also support a

conclusion that Child’s condition is endangered.

B. Care is Unlikely to Be Provided Without Court Intervention [17] Father challenges the juvenile court’s conclusion that he is unlikely to address

his mental-health issues without court intervention. “[T]he government is

permitted to forcibly intervene in a family’s life only if the family cannot meet a

child’s needs without coercion[.]” Matter of E.K., 83 N.E.3d 1256, 1261 (Ind.

Ct. App. 2017), trans. denied. Generally, while “the question is whether the

parent[] must be coerced into providing or accepting necessary treatment for

their child[,]” id. at 1262, the question here is whether Father must be coerced

into getting the care that he needs in order to be a good parent to Child.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 10 of 12 [18] While it is true that Father is participating in home-based counseling, he is

under court order to do so, and there is no indication that he would seek such

counseling on his own. We find it of little help to Father that he requested the

counseling from the juvenile court, because the request was made only after

DCS became involved. Moreover, Father admitted that he had unilaterally

stopped taking medication to treat his mental-health issues, was not currently

under a physician’s care, and had not seen a doctor since June or July of 2018.

Simply put, there is no compelling evidence that Father would be doing

anything at all to address his mental-health issues without court intervention,

and the record indicates that he is not currently doing enough, even with court

intervention. The juvenile court’s conclusion in this regard is not clearly

erroneous.

III. Removal from Father’s Care [19] Finally, Father contends that the juvenile court abused its discretion in ordering

the removal of Child from his care. Indiana Code section 31-34-20-1(a)

provides, in part, that

if a child is a child in need of services, the juvenile court may enter one (1) or more of the following dispositional decrees: (1) Order supervision of the child by the department. [….] (3) Remove the child from the child’s home and authorize the department to place the child in another home, shelter care facility, child caring institution, group home, or secure private facility. Placement under this subdivision includes authorization to control and discipline the child.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 11 of 12 [20] The juvenile court ordered that Child be placed with Father’s parents and that

Father could continue to reside with his parents but could only have supervised

visitation with Child. Father contends that this disposition seems to be based

exclusively on the fact that Father and Father’s mother had arranged a

babysitter for Child during the evidentiary hearing. Suffice it to say that we see

nothing in the record to support this contention. The juvenile court’s concerns

about Child remaining in Father’s care are clear from the record and have

nothing to do with a babysitter: Father’s threat to kill Child and his

unaddressed mental-health issues. Given these concerns, we cannot say that

the juvenile court abused its discretion in crafting a dispositional order that

limits Father’s contact with Child to supervised visitation, at least for the time

being.

[21] We affirm the judgment of the juvenile court.

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019 Page 12 of 12