MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 22 2017, 9:50 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Special Assistant to Indiana Public Robert J. Henke Defender David E. Corey Brooklyn, Indiana Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of L.G., A Child in May 22, 2017 Need of Services, Court of Appeals Case No. 52A05-1610-JC-2454 Appeal from the J.C., Father, Miami Circuit Court Appellant-Respondent, The Honorable Timothy P. Spahr, Judge v. Trial Court Cause No. 52C01-1606-JC-65 Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 1 of 14 Kirsch, Judge.
[1] J.C. (“Father”) appeals the juvenile court’s adjudication finding his minor son,
L.G. (“Child”) to be a Child in Need of Services (“CHINS”). He raises the
following restated issue: whether the evidence is sufficient to support the
CHINS adjudication.
[2] We affirm.
Facts and Procedural History [3] At the time that the present CHINS case was filed, Child was sixteen years old,
and his mother was deceased. Child had been the subject of a prior CHINS
case that was filed in August 2014 and closed in late 2015 or early 2016.
During that case, Child was placed at Youth Opportunity Center (“YOC”) for
approximately a year. When that CHINS case closed, Child was formally
placed in Father’s care.
[4] Father worked the third shift, such that he had to find supervision for Child
during that time period. Father states that, at some point after the closure of the
prior CHINS case, he reached an informal agreement with Indiana Department
of Child Services (“DCS”) that, while he was at work, Child would be
supervised by Child’s aunt (“Aunt”) at her residence.
[5] On June 14, 2016, DCS received a report that Child was at Aunt’s home and
that a methamphetamine lab had been discovered there by police. Child was
taken to the hospital for a medical evaluation, and he tested positive for
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 2 of 14 methamphetamine and marijuana. At the hospital, DCS family case manager
Miranda Sipe (“FCM Sipe”) spoke to Child, who told her that he was aware of
the “illegal activities” happening at Aunt’s home and that he used
methamphetamine and marijuana. Tr. at 52. He indicated to FCM Sipe that
he and Father have “a bad relationship.” Id. at 53. DCS contacted Father, and
he came to the hospital. Father told FCM Sipe that he was unaware that Child
used drugs.
[6] While Father was at the hospital, Father and Child were having a phone
conversation, and FCM Sipe was present with Child during the call. Father
was expressing his anger about the whole situation, and FCM Sipe could hear
that Father was cursing. She saw that Child was becoming upset, so she took
the phone away from Child, told Father that “he needed to stop or we were
gonna have to ask him to leave,” and she ended the phone call. Id. At some
point, Father told FCM Sipe that he could not take Child home that evening
because he had to be at work and could not miss it, as he had just started the job
and did not want to lose it. DCS detained Child and placed him at YOC.
[7] On June 15, 2016, DCS filed a petition alleging Child to be a CHINS, based in
part on the facts that Child was found in Aunt’s home, where
methamphetamine was present, and that Child tested positive for
methamphetamine and marijuana. The petition also alleged that Child
“disclosed” to DCS that “Father is aware of his drug use.” Appellant’s App. at
17. At the initial and detention hearing, Father testified that he was “at his
wit’s end with [Child]” and that he was “done” with Child. Tr. at 64. Father
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 3 of 14 acknowledged that he had “trouble” managing Child’s behaviors and that he
did not want placement of Child with him at that time. Id. at 65-66. The
juvenile court maintained Child’s removal and placement and set the matter for
a fact-finding hearing.
[8] On July 9, 2016, Child ran away from his placement at YOC and was still
missing at the time of the August 10, 2016 fact-finding hearing, at which FCM
Sipe and Father testified. FCM Sipe described that her involvement began
when DCS was notified on June 14 that Child was found in Aunt’s home where
methamphetamine was present. FCM Sipe went to the home, and then to the
hospital, where Child tested positive for methamphetamine and marijuana.
FCM Sipe interviewed Child at the hospital, and he told her that he was aware
of the methamphetamine lab being operated at the home. FCM Sipe contacted
Father, who came to the hospital. Father told FCM Sipe that he was not aware
of Child’s drug use. FCM Sipe testified to witnessing what Child had described
as a “bad relationship” between Child and Father, explaining that she was in
the room with Child during his phone conversation with Father and that she
“removed” the phone from Child and “hung up on” Father because he was
cursing at Child and upsetting him. Id. at 53-54. With regard to Child running
away from YOC, FCM Sipe stated that Child ran away with another juvenile
and that DCS had received some information from that other juvenile’s father,
which information DCS had shared with law enforcement.
[9] Father testified that, although Child’s mother had died in the fairly-recent past,
“His mother did not raise him, I did,” and that he had had custody of Child
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 4 of 14 since Child was four years old. Id. at 58. Father stated that during a meeting
with DCS, which occurred after the prior CHINS case was closed, he and DCS
agreed that Aunt’s house was an acceptable location for Child during the time
that Father worked. He testified that he had been to Aunt’s home and had not
witnessed drugs or other activity to cause him concern and believed it was safe.
Father stated that he “absolutely” did not know that Child was using
methamphetamine or smoking marijuana. Id. at 61. For some period of time
after the closure of the prior CHINS case, Father took Child to a facility called
Four County for treatment, but he quit taking Child because they “kept jerking
around [and] didn’t give [Child] his medications.” Id. at 61-62. Father also
testified that, because Child could not attend school unless he was on his
medications, Child “end[ed] up skipping like three weeks of school.” Id. at 61.
However, according to Father, the school did not notify him that Child had
missed school “until three weeks later.” Id. Father acknowledged that he never
visited Child during the two or three weeks that he was at YOC before running
away, but explained that he was waiting to visit because he believed Child
needed to think about his actions, given that Child had recently spent a year or
so at YOC during the prior CHINS case, and not long after that was completed,
Child was “smoking meth and smoking weed[.]” Id. at 66. Father was “very
mad” and “very disappointed.” Id. at 67. Because Father had indicated to the
court that DCS had in some fashion approved of Child being supervised by
Aunt, the juvenile court asked FCM Sipe about whether DCS formally placed
Child with Aunt, and she stated she was not aware of any such placement. Id.
at 57. Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 5 of 14 [10] At the conclusion of the August 10 fact-finding hearing, the juvenile court
adjudicated Child a CHINS.1 The juvenile court expressed concern that, in less
than six months after the last CHINS was closed, Child was using drugs, Father
and others had difficulty controlling Child’s conduct, Child had missed several
weeks of school, and Child was off his medications. The juvenile court also
noted that Child had not contacted Father after running away from YOC.
[11] Child participated in the September 2016 dispositional hearing by telephone
from The Kinsey Center, a family and child shelter in Kokomo, Indiana.
Father appeared for hearing, in person and with counsel. Father agreed that
Child needed inpatient treatment, and while he acknowledged that he had
difficulty managing Child’s behaviors, Father asked that Child initially be
placed with him and then Child would start treatment. Father acknowledged
that Child never contacted him before or after he ran away from YOC, until he
was arrested in Missouri, but Father urged that “it’s because he knows I’d turn
him in so of course he ain’t gonna contact me.” Tr. at 39. DCS expressed
concern about placing Child with Father because Child still needed “more
constant supervision” than Father could provide as a single working father. Id.
at 13. DCS noted that the concerns and issues present at the initial hearing –
that Child needed substance abuse treatment and treatment for “underlying
issues that he may still have dealing with his mother’s death and other things” –
1 According to DCS, Child was “located in Missouri in late August and returned to Indiana on or about August 26, 2016.” Appellee’s Br. at 8.
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 6 of 14 had not yet been addressed at all. Id. at 13-14. John Walker, a representative
from the Miami County CASA program, testified, “I don’t think he should go
home yet” as Child needed to be in a placement where he would get the
treatment “that he desperately needs.” Id. at 16. DCS indicated it was looking
to place Child at a facility that was “secure enough to keep him safe and also
provide him with the substance abuse and other therapy that he needs.” 2 Id. at
19.
[12] The juvenile court opined that the evidence reflected that Child needed “some
pretty intensive attention [and] treatment,” noting that Child had tested positive
for methamphetamine at age sixteen and exhibited difficulty or unwillingness to
follow rules. Id. at 22. In its September 2016 dispositional order, the juvenile
court ordered placement of Child with DCS and ordered Father and Child to
participate in services.3 Father now appeals.
2 DCS indicated that it was not asking for reimbursement. Tr. at 20. 3 We note that Father expressed concern to the juvenile court that DCS failed to stay in communication with him: “I could never get a hold of them. They never return my calls, they never let me know they found my kid, they never let me know he ran away. They never let me know nothing.” Tr. at 25. He inquired, “[H]ow am I supposed to do things when they don’t even contact me, at all, and they got my phone number.” Id. at 26. The juvenile court offered, “If you’re not getting a response from the family case manager, you can contact one of the supervisors[,]” and if that does not accomplish anything, then bring the matter “to [your attorney’s] attention[,]” and the juvenile court urged Father to attend all child and family team meetings in order to stay informed. Id. at 27. We remind all parties of the responsibility to remain accessible and in communication.
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 7 of 14 Discussion and Decision [13] CHINS proceedings are civil actions, and therefore, it must be proven by a
preponderance of the evidence that a child is a CHINS as defined by statute.
Ind. Code § 31-34-12-3; In re L.C., 23 N.E.3d 37, 39 (Ind. Ct. App. 2015) (citing
In re N.E., 919 N.E.2d 102, 105 (Ind. 2010)), trans. denied. When we review a
CHINS determination, we neither reweigh the evidence nor judge the
credibility of the witnesses. Id. We consider only the evidence that supports the
juvenile court’s decision and the reasonable inferences drawn therefrom. Id. at
39-40.
[14] When a juvenile court’s order contains specific findings of fact and conclusions
thereon, we engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind.
Ct. App. 2014) (citing In re T.S., 906 N.E.2d 801, 804 (Ind. 2009)). First, we
determine whether the evidence supports the findings, and then, we determine
whether the findings support the judgment. Id. Findings are clearly erroneous
when there are no facts or inferences drawn therefrom that support them. Id. A
judgment is clearly erroneous if the findings do not support the juvenile court’s
conclusions or the conclusions do not support the resulting judgment. Id.
While a reviewing court gives substantial deference to a juvenile court’s
findings of fact, it does not apply the same deference to its conclusions. In re
V.H., 967 N.E.2d 1066, 1072 (Ind. Ct. App. 2012).
[15] Indiana Code sections 31-34-1-1 through 11 specify the elements of the CHINS
definition that the State must prove:
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 8 of 14 (1) the child is under the age of 18;
(2) one or more particular set or sets of circumstances set forth in the statute exists; and
(3) the care, treatment, or rehabilitation needed to address those circumstances is unlikely to be provided or accepted without the coercive intervention of the court.
In re N.E., 919 N.E.2d at 105. Here, the juvenile court adjudicated Child to be a
CHINS pursuant to Indiana Code section 31-34-1-1, which provides:
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.
Therefore, this statute requires “three basic elements: that the parent’s actions
or inactions have seriously endangered the child, that the child’s needs are
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 9 of 14 unmet, and . . . that those needs are unlikely to be met without State coercion.”
In re S.D., 2 N.E.3d 1283, 1287 (Ind. Ct. App. 2014).
[16] In the present case, Father asserts that “DCS failed to present sufficient
evidence to support the juvenile court’s finding that [Child]’s physical or mental
condition was seriously endangered as a result of Father’s (in)actions.”
Appellant’s Br. at 8. Father appears to challenge Finding No. 11, which stated:
Based upon the evidence presented to the Court, it is clear that the child’s physical or mental health is seriously endangered as a result of the inability and neglect of the Father to supply the child with medical care, education, and supervision. Additionally, the child needs care, treatment, and rehabilitation that he has not been receiving and that is unlikely to be provided or accepted without the coercive intervention of the Court.
Appellant’s App. at 39. The crux of Father’s argument is that “[Child]’s
difficulties are not the result of Father’s actions or inactions” and that “DCS
failed to show that the problems . . . are due to Father’s neglect.” Appellant’s Br.
at 7-8.
[17] For instance, Father asserts that DCS did not prove that he failed to provide the
Child with adequate supervision and that, as a result, Child’s mental or physical
health was endangered, as found in Finding No. 11. He argues that the
evidence presented was that Father believed the Aunt’s home was safe, and he
did not know about the illegal drug activity. While Father testified that he
believed Aunt’s home was safe and that he was not aware of illegal drug
activity at the home, the evidence presented was that there was a
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 10 of 14 methamphetamine lab at the home, and that Child knew about illegal drug
activity occurring there, and that he tested positive for methamphetamine and
marijuana. Father had placed Child there, which, according to Father was
pursuant to a prior informal arrangement reached with DCS, although FCM
Sipe was not aware of it. As Child’s custodial parent, Father bore the
responsibility of knowing what was happening in the home where he left Child
to be supervised. We thus reject Father’s claim that DCS failed to show that
Father did not provide Child with adequate supervision, and that, as a result,
Child’s mental or physical health was endangered.
[18] Father also challenges the juvenile court’s determination in Finding No. 8 that
“Father was not taking the child to services and the child was not receiving his
medications[.]” Appellant’s App. at 38. The evidence presented established, and
Father acknowledges, that he quit taking Child to Four County: “I took him
out of it, why? [They were] not giving him his medicine. [They were] not
doing nothing for him, why keep going?” Tr. at 61-62. Father suggests,
however, that he was “under no obligation” to take Child to therapy “as the
[prior] CHINS case had been closed.” Appellant’s Br. at 10. The issue,
however, is not whether he was under a legal obligation; the issue is whether, as
the juvenile court found, Father was not taking the Child to services and
whether Child, while in Father’s custody, was not getting his needed
medications. The evidence supports the juvenile court’s Finding No. 8.
[19] Finding No. 10 determined that “Father admitted that the child had missed
approximately three weeks of school prior to the end of the school year this
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 11 of 14 spring.” Appellant’s App. at 38. Father does not dispute that Child missed the
weeks of school; rather, he contends that “DCS failed to show what action or
lack thereof on the part of Father led to [Child] not attending school.”
Appellant’s Br. at 10. We disagree. The evidence presented was that Father
unilaterally quit taking Child to Four County, and Child was not getting his
medications. As a result, as Father explained, “[Child] couldn’t go to school
because he wasn’t on his meds so he was flipping out at school and nobody
wanted to do nothing, nobody wanted to give him his meds and then he ends
up skipping like three weeks of school.” Tr. at 61-62. From the evidence
presented, the juvenile court could reasonably find that Father’s action or
inaction led to Child not attending school.4
[20] A CHINS adjudication is a determination that a child is in need of services and
is unlikely to receive those services without the court’s intervention; it is not a
determination of parental fault. In re N.E., 919 N.E.2d at 105. “The purpose of
the CHINS adjudication is to ‘protect the children, not punish parents.’” In re
K.D., 962 N.E.2d 1249, 1255 (Ind. 2012) (quoting In re N.E., 919 N.E.2d at
106). “The process of the CHINS proceeding focuses on ‘the best interests of
the child, rather than guilt or innocence as in a criminal proceeding.’” Id.
4 In his brief, Father does not does not identify or refer us to precisely which findings he asserts are not supported by the evidence, but based on his arguments, we infer that he challenges Finding Nos. 8, 10, and 11. To the extent that Father does not challenge the rest of the juvenile court’s findings of fact, these unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by trial court resulted in waiver of argument that findings were clearly erroneous), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 12 of 14 [21] Here, the evidence presented showed that Child, at age sixteen, was using
methamphetamine and marijuana at his Aunt’s home, where Father was taking
Child to be supervised while Father was at work. This occurred just months
after a prior CHINS proceeding involving Child was closed. Illegal drug
activities, including operation of a methamphetamine lab, were occurring at
Aunt’s home, where Child stayed while his Father was at work. Child had a
strained relationship with his Father, who shared at the initial hearing that he
was at his “wit’s end” and could not manage Child’s behavior. Tr. at 64.
Father testified that for a period of time he had been taking Child for his
treatment or therapy at Four County, but eventually quit taking Child because
Four County was “jerking around” and not giving Child his medications. Id. at
61-62. Father acknowledged that Child had missed several weeks of school,
which Father attributed to the fact that Child was not on his medications.
Child ran away from YOC and was still on the run at the time of the August 10
fact-finding hearing. Child did not contact Father while at YOC or contact him
after he ran away, with Father hearing from Child only when he was arrested
more than a month later in Missouri. The evidence presented illustrated that
Child: (1) was unwilling or unable to follow rules, including those of his
Father; (2) needs to be on medication, which he was not taking or getting; (3)
needs substance abuse treatment; and (4) needs therapy for other issues likely
related to his mother’s death. DCS expressed concerns about these matters at
the beginning of the CHINS case, and no progress was made on any of them.
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 13 of 14 [22] CHINS statutes do not require that a court wait until a tragedy occurs to
intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Based on the
evidence presented, we find that DCS proved by a preponderance of the
evidence that Child’s physical or mental condition was seriously endangered as
a result of Father’s action or inaction and that Child needed care or treatment
that he was not getting and was unlikely to get without coercive intervention of
the court. The juvenile court did not err in adjudicating Child to be a CHINS.
[23] Affirmed.
Mathias, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 52A05-1610-JC-2454 | May 22, 2017 Page 14 of 14