In the Matter of: L.G., C.G., A.G., and V.G. (Minor Children Alleged to be in Need of Services) M.G. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 29, 2018
• Docket: 48A02-1710-JC-2457
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 29 2018, 10:25 am regarded as precedent or cited before any 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 John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: March 29, 2018 L.G., C.G., A.G., and V.G. Court of Appeals Case No. (Minor Children Alleged to be in 48A02-1710-JC-2457 Need of Services) Appeal from the Madison Circuit M.G. (Father), Court The Honorable G. George Pancol, Appellant-Respondent, Judge v. Trial Court Cause Nos. 48C02-1706-JC-274 48C02-1706-JC-275 Indiana Department of Child 48C02-1706-JC-276 Services, 48C02-1706-JC-277 Appellee-Petitioner

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 1 of 10 Case Summary [1] M.G. (“Father”) appeals the trial court’s determination that his four children

are in need of services (CHINS). Finding no error, we affirm.

Facts and Procedural History [2] Me.G. (“Mother”)1 and Father are married, live in Anderson, and have four

children together: L.G., C.G., A.G., and V.G. When this CHINS proceeding

began, the children were 10 years old, 9 years old, 4 years old, and 6 months

old, respectively.

[3] Mother and Father have a history with the Department of Child Services

(DCS). In Fall 2016, L.G., C.G., and A.G. were adjudicated CHINS. 2 The

primary concerns were that C.G. was leaving home without the parents’

knowledge and that Mother and Father needed mental-health services. C.G. is

autistic and non-verbal and has a history of leaving the house naked, running

across the street to a neighbor’s house, entering the neighbor’s house, and

taking a picture off the wall and throwing it to the ground.

[4] Initially, Mother engaged in mental-health services and was diagnosed with

schizoaffective disorder. Mother, however, stopped participating after only a

1 Mother admitted the CHINS allegations and is not a party to this appeal. Accordingly, we discuss only the facts relevant to Father’s appeal. 2 V.G. was not yet born, so she was not part of that CHINS proceeding.

Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 2 of 10 month or two. Father did not think that Mother had any mental-health issues

and refused to discuss with DCS Mother’s issues or the possibility of her re-

engaging with services. The original CHINS case was closed in March 2017

because DCS installed keypad locks on the exterior doors of the home and there

were “no safety concerns for the children[.]” Tr. Vol. I p. 115.

[5] Three months later, on June 9, Mother let C.G. out of the house because “the

voices in her head told her” to let him out. Id. at 18. C.G., who was naked and

“covered in feces,” ran to the neighbor’s house and threw the same picture on

the ground. Id. at 77. Because C.G. was “covered in feces,” the neighbor

called the police. Mother was able to retrieve C.G. from the neighbor before

the police arrived. An Anderson police officer responded to the call and spoke

with Mother. Mother appeared “confused” and not “really with it.” Id. at 83.

However, the officer did not call DCS or seek to remove the children from the

home. Father was not home during any of these events.

[6] The next day, Mother, Father, and V.G. were in the garage together. Father

went inside the house to use the restroom. When he came back outside,

Mother and V.G. were gone. A little while later, workers at the Anderson

Municipal Airport called the police because Mother was walking alongside a

runway with V.G. By the time officers arrived, Mother and V.G. were in the

airport parking lot. Mother was drunk and breastfeeding V.G. Officers asked

her multiple times to stop breastfeeding. She refused and became belligerent.

Mother eventually agreed to give V.G. to medics who had arrived and to take a

field-breathalyzer test. The test indicated that her blood alcohol concentration

Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 3 of 10 was .212. She admitted to consuming “a quarter fifth of vodka” but had

disposed of the bottle before officers arrived. Id. at 91. Mother was arrested

and charged with neglect of a dependent. V.G. was transported to the hospital

for assessment but had no apparent injuries. DCS was called to the hospital to

investigate, and Father was called to pick up V.G. from the hospital. DCS

spoke with Father and let him take V.G. home. All four children were allowed

to remain in Father’s care.

[7] On June 21, DCS filed petitions to have all four children adjudicated CHINS.

DCS did not seek to have the children removed from the home. One week

later, Family Case Manager (FCM) Christy Brubaker received a copy of the

June 9 police report and spoke with Father about the incident. Father stated

that he was not home at the time because he had taken L.G. and A.G. to the

ballpark and that he had no idea that C.G. had gotten out of the house.

However, he admitted that he knew on June 9 that Mother was “slipping”

mentally but chose to leave C.G. and V.G. in her care. Id. at 126. Father

added that his plan was to post bail for Mother and have her move back home

so that she could “decompress” and he could “assess” her. Id. Father is not a

mental-healthcare professional, and despite being told that Mother was hearing

voices on June 9, Father believed that she was only hearing voices because of

the stress of being in jail. Based on Father’s comments that he knew Mother

was “slipping” and chose to leave V.G. (an infant) and C.G. (a non-verbal,

autistic child) in her sole care, DCS amended its CHINS petitions and sought to

have all of the children removed from the home. The amended petitions were

Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 4 of 10 granted on June 30. The children were placed in foster care; L.G., A.G., and

V.G. were placed together, and C.G. was placed in a separate home because of

his autism.

[8] A fact-finding hearing was held in August 2017, and multiple witnesses

testified, including C.G.’s foster mother and Father. C.G.’s foster mother

stated that C.G.’s medications were not being properly administered when he

arrived. She said that there was at least one missing prescription and that based

on the fill date and dosage instructions that his other prescriptions either had

too many or too few pills. She had an appointment with a doctor to have

C.G.’s medications re-evaluated. Regarding C.G.’s propensity to flee the

house, she admitted that C.G. had gotten out of her house on three occasions—

twice through the front door and once by climbing out of his bedroom window.

However, her yard was fully fenced, including the front yard, and C.G. was not

able to get out of the yard.

[9] Father did not believe that the children were CHINS because he was able to

care for them and Mother without the court’s intervention. He stated that the

family did the best that they could to keep C.G. inside but that “we’re human”

and “forget” to lock the door sometimes. Id. at 169. He pointed out that C.G.

had gotten out of his current foster home three times and that before the

children were removed, he cared for all four of them for eighteen days without

incident.

Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 5 of 10 [10] Regarding caring for Mother, Father posted bail for her in July and

immediately checked her into a mental-health facility, where she stayed for six

days. She then began an Intensive Outpatient Program (IOP) and saw a

therapist and psychiatrist multiple times a month. The record is unclear as to

where Mother was living at the time of the hearing. Because of her criminal

case, a no-contact order was in place between Mother and V.G. Father was

hopeful that the criminal court would vacate the no-contact order at a hearing

being held three days after the CHINS fact-finding hearing. If the order was

vacated, Mother would move back into the house, and Father’s mother would

assist with supervising Mother with the children. If the order was not vacated,

Mother was to live with her parents in Greenwood.

[11] When asked about Mother’s mental-health issues, Father acknowledged that by

June 9 he had noticed her “slipping” but that meant she was “being more quiet

and more reserved” than normal. Id. at 164. He had “no clue” that she was

hearing voices. Id. Nevertheless, he denied that Mother had schizoaffective

disorder and claimed that she was merely depressed. He also denied that

Mother abused alcohol and said that alcohol was not kept in their home.

[12] At the conclusion of the hearing, the court adjudicated all four children

CHINS. It noted, “We’ve been down this road before. . . . [T]here is [sufficient

evidence] based upon the June 9th and the June 10th incidents and the um fact

that we’ve been here before which leads the Court to believe that coercive

intervention of the Court is warranted under the statute.” Id. at 180-81. The

court then held a dispositional hearing and issued a dispositional order

Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 6 of 10 requiring Father to participate in services with DCS, and L.G. and A.G. were

returned to the care and custody of Mother and Father. C.G. and V.G. were

ordered to remain in the care and custody of their respective foster parents.

[13] Father now appeals.

Discussion and Decision [14] Father argues that the evidence is insufficient to support the trial court’s

determination that the children are CHINS. A CHINS proceeding focuses on

the best interests of the children, not the “guilt or innocence” of the parents. In

re D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). “The purposes of a CHINS

case are to help families in crisis and to protect children, not punish parents.”

Id. To prove a CHINS allegation, DCS must show, by a preponderance of the

evidence, that: (1) the children are under the age of eighteen; (2) one of eleven

different statutory circumstances exists that would make the children CHINS

under Indiana Code sections 31-34-1-1 to -11; 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 102, 105 (Ind. 2010). Here, the trial court adjudicated the children

CHINS under Section 1, which states:

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 Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 7 of 10 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.

Ind. Code § 31-34-1-1. The final element “guards against unwarranted State

interference in family life, reserving that intrusion for families where parents

lack the ability to provide for their children, not merely where they encounter

difficulty in meeting a child’s needs.” In re S.D., 2 N.E.3d 1283, 1287 (Ind.

2014) (quotations omitted) (emphases in original).

[15] This Court will neither reweigh the evidence nor judge the credibility of the

witnesses. In re D.F., 83 N.E.3d 789, 796 (Ind. Ct. App. 2017). Rather, we

consider only the evidence that supports the court’s determination and

reasonable inference drawn therefrom. Id. We will reverse the court’s

determination only upon a showing that the decision was clearly erroneous. Id.

[16] Father argues that the evidence is insufficient to support the adjudication of his

children as CHINS and that the coercive intervention of the court is necessary.

With regard to L.G. and A.G., Father claims that the court erred because there

was no evidence presented that he was not meeting their needs. In its written

order, the trial court adjudicated the children CHINS because of “an [i]nability, Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 8 of 10 refusal, or neglect of a parent, guardian, or custodian to supply child with

necessary food, clothing, shelter, medical care, education, or supervision.”

Appellant’s App. Vol. II pp. 42-43.3 While the events of June 9 and 10 involved

only C.G. and V.G., Mother’s mental-health issues are not limited to impacting

only those two children. During the first CHINS proceeding, Mother stopped

attending mental-health services. Not only did Father acquiesce in Mother’s

decision to stop attending services, but he has also repeatedly downplayed the

severity of Mother’s mental-health issues. He claimed that Mother heard voices

only after being in jail and that she needs to “decompress” at home where he

can “assess” her. Furthermore, he claims that hearing voices is not a symptom

of schizoaffective disorder but that Mother is merely depressed. When Mother

is not receiving mental-health services, all of her children are at risk. There is

no way to predict what the voices she hears will tell her to do, and on June 9

they told her to let C.G. out of the house, despite his disabilities. A trial court

need not wait until tragedy occurs before entering a CHINS finding. D.P., 72

N.E.3d at 980. In other words, the court need not wait until L.G. and A.G. are

involved in an incident with Mother to adjudicate them CHINS.

[17] As for C.G. and V.G., Father claims the trial court erred because he was not

home on June 9 and that there was no evidence that he was not meeting their

needs. Father, however, knew by June 9 that Mother was “slipping” mentally.

3 Father includes only the CHINS order relating to A.G. in his appendix. We are left to assume that the other three orders had similar, if not identical, findings and conclusions.

Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 9 of 10 Yet, he chose to leave his autistic, non-verbal child and infant child in her sole

care. As already discussed, Father has minimized Mother’s mental-health

issues and did nothing to help her or protect his children. By minimizing

Mother’s issues, Father was not meeting the needs of his children. The CHINS

adjudication for C.G. and V.G. was not clearly erroneous.

[18] Father also contends that there is no evidence that the children’s needs would

go unmet without the coercive intervention of the court. During the first

CHINS case, Mother and Father stopped engaging with DCS’s service

providers. That case was closed in March 2017. Only after DCS reengaged

with Mother and Father did they seek mental-health treatment for Mother, even

though Father knew by June 9 that Mother’s mental health was “slipping.”

While the trial court labeled these efforts as “voluntary,” we are hard pressed to

believe that they would have occurred without the current CHINS proceeding

or that they would continue if the CHINS petitions were closed. Accordingly,

we affirm the trial court’s conclusion that coercive intervention of the court is

necessary to ensure the needs of the children are met.

[19] Affirmed.

Barnes, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1710-JC-2457 | March 29, 2018 Page 10 of 10