In the Matter of: L.W. (Minor Child), And M.W. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 19, 2020
• Docket: 20A-JC-31
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 19 2020, 8:16 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna K. Weissmann Robert J. Henke Lawrenceburg, Indiana Abigail Recker Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: May 19, 2020

L.W. (Minor Child), Court of Appeals Case No. 20A-JC-31 And Appeal from the Decatur Circuit M.W. (Father), Court Appellant-Respondent, The Honorable Timothy Day, Judge v. Trial Court Cause No. 16C01-1909-JC-321 Indiana Department of Child Services, Appellee-Petitioner.

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 1 of 10 STATEMENT OF THE CASE [1] Appellant-Respondent, M.W. (Father), appeals the trial court’s adjudication of

his minor child, L.W. (Child), as a Child in Need of Services (CHINS).

[2] We affirm.

ISSUE [3] Father presents this court with three issues on appeal, which we restate as:

Whether the trial court erred by adjudicating Child to be a CHINS.

FACTS AND PROCEDURAL HISTORY [4] Mother and Father are the biological parents to Child, born on April 13, 2011. 1

While Child resided with both parents, Father had physical custody of the

Child. On September 8, 2019, Westport Police Department officer Tony

Blodgett (Officer Blodgett), was dispatched to a domestic violence incident at

parents’ home. Upon arrival, Officer Blodgett observed Mother “bleeding from

her nose, sobbing, [and] crying uncontrollably.” (Transcript p. 29). Mother

told the officer that she and Father “had gotten in an argument over money,

and that they had gotten up and . . . bump[ed] chests together. And he had

then spit in her face. He had hit her and bent her backward over the top of the

countertop; was choking her to the point where she felt like she was going to

lose consciousness, and had taken a frying pan and hit it on the countertop so

1 Mother does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 2 of 10 badly that it had bent the frying pan almost in half.” (Tr. pp. 29-30). Child was

in the home at the time of the altercation. Officer Blodgett spoke with Father,

who had left the home with Child by the time the officer arrived, over the

telephone. Father advised the officer that Mother had assaulted him. He

described Mother “head-butt[ing]” him and that “any marks that she had on

her, she would have done herself.” (Tr. pp. 38-39). Father refused to go to the

police station so that Officer Blodgett could gather evidence supporting Father’s

statement. Upon further investigation, Officer Blodgett was informed by

Bartholomew County law enforcement officers that they had responded to prior

domestic violence incidents at parents’ home.

[5] The Department of Child Services (DCS) became involved with the family on

September 17, 2019, when the trial court authorized the emergency removal of

the Child from her parents’ care after Father “abscond[ed] with the [C]hild to

elude law enforcement with regard to [] domestic violence” that occurred in the

home, and due to Mother’s history of drug abuse and “deplorable home

conditions.” (Appellant’s App. Vol. II, pp. 13-14). That same day, DCS filed

its CHINS petition and an initial hearing was held during which Mother

admitted the allegations and Father entered a denial. Two days later, on

September 19, 2019, DCS filed an amended CHINS petition, alleging that the

Child had been exposed to domestic violence by Father against Mother. As a

result, Father had been charged with criminal confinement, domestic battery

resulting in bodily injury, and domestic battery against Mother. DCS located

the Child in Bartholomew County where Father had placed her after fleeing

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 3 of 10 from law enforcement officers when the domestic violence incident occurred.

Child was dirty, wearing dirty clothes, and had dog feces caked on the soles of

her feet.

[6] On November 14, 2019, the trial court conducted a fact-finding hearing. At the

hearing, Mother characterized the incident as “an argument” and a

“disagreement.” (Tr. p. 46). She recanted her previous statement in which she

pointed to Father as the initial aggressor, stating that she could not remember

Father using violence against her, but instead she remembers “flipping out my

own self because I thought he was – in my head I was thinking he was going to

take my child.” (Tr. p. 46). Mother denied sustaining any injuries during the

incident.

[7] Father denied any domestic violence issues existed between him and Mother.

He testified that during the incident on September 8, 2019, Mother “jumped up

and started screaming and acting crazy” so he grabbed “a pan and beat it on the

counter trying to get her to shut up.” (Tr. p. 81). Father described Mother

“grabb[ing] [him] by the neck and [he] had a big cut.” (Tr. p. 86). Father took

Child and left the residence. As a result of the incident, the State charged

Father with three felonies, which were pending at the time of the fact-finding

hearing, and the criminal court imposed a no-contact order between Mother

and Father.

[8] At the hearing, Father confirmed Mother’s substance abuse issues, describing

her as a “monster” when she is using. (Tr. p. 80). He testified that at the time

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 4 of 10 of the incident, Mother was taking “Klonopin and then whatever the neighbor

lady gave her.” (Tr. p. 80). Mother informed the trial court that she was

receiving treatment through the Indiana Treatment Center, she was enrolled in

counseling twice a month, and she was receiving methadone treatment for

substance abuse issues. Although Mother and Father were living apart due to

the no-contact order, Mother admitted that she would be staying with Father

absent the order.

[9] DCS’s Family Case Manager (FCM) testified that Mother described Father as

“controlling” which caused the FCM concern that Mother had recanted her

statement about the domestic violence incident under Father’s pressure. (Tr. p.

61). The FCM also informed the trial court that it is concerning that when

Mother is prescribed medication by her doctors, she appears to decide whether

she will continue to take the medication. At the hearing, the FCM was also

unaware of Mother receiving substance abuse treatment.

[10] At the close of the fact-finding hearing, the trial court found the allegations of

the CHINS petition to be true and adjudicated the Child to be a CHINS. The

court ordered both parents to participate in services and, concluding that the

Child’s detention was no longer necessary, ordered Child placed into Father’s

care. On January 3, 2020, after a dispositional hearing, the trial court ordered

Father, in pertinent part, to submit to random drug screens, to refrain from

engaging in acts of domestic violence, and to participate in and complete all

recommendations as a result of the domestic violence assessment.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 5 of 10 [11] Father now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION [12] Father contends that the trial court abused its discretion in finding Child to be a

CHINS. In order to adjudicate a child as a CHINS, DCS must prove by a

preponderance of the evidence that:

(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; 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 making its determination, the trial court should consider

the family’s condition not just when the case was filed, but also when it was

heard. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014). A CHINS adjudication

cannot be based solely on conditions that have ceased to exist. In re S.A., 15

N.E.3d 602, 6011 (Ind. Ct. App. 2014), trans. denied. The adjudication must be

based on the evidence presented in court and not on the allegations in the

pleadings. Maybaum v. Putnam Co. O.F.C., 723 N.E.2d 951, 954 (Ind. Ct. App.

2000). In reviewing a CHINS determination, we do not reweigh evidence or

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 6 of 10 assess witness credibility. Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct. App.

2017). We consider only the evidence in favor of the trial court’s judgment,

along with any reasonable inferences arising therefrom. Id.

[13] Father maintains that the trial court erred in adjudicating Child to be a CHINS

because there was no evidence Child was in any danger, or that her needs

would go unmet in the absence of the coercive intervention by the trial court.

The purpose of a CHINS inquiry is to determine whether a child’s

circumstances require services that are unlikely to be provided without the

intervention of the court, and thus, the focus of a CHINS adjudication is on the

condition of the child alone, not on the culpability of one or both parents. In re

N.E., 919 N.E.2d 102, 105-06 (Ind. 2010). Nonetheless, “[n]ot every

endangered child is a child in need of services, permitting the State’s parens

patriae intrusion into the ordinarily private sphere of the family.” In re S.D., 2

N.E.3d at 1287. Rather, a CHINS adjudication under Indiana code section 31-

34-1-1 requires proof of three basic elements: the parent’s actions or inactions

have seriously endangered the child; the child’s needs are unmet; and “perhaps

most critically,” those needs are unlikely to be met unless the State intervenes.

Id. It is the last element that guards against unwarranted State interference in

family life. Id. State intrusion is warranted only when parents lack the ability

to provide for their children. Id. In other words, the focus is on the best

interests of the child and whether the child needs help that the parent will not be

willing or able to provide. Id. Despite a “certain implication of parental fault in

many CHINS adjudications, the truth of the matter is that a CHINS

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 7 of 10 adjudication is simply that—a determination that a child is in need of services.

In re N.E., 919 N.E.2d at 105.

[14] In support of his argument that a CHINS adjudication was an abuse of

discretion, Father relies on A.M. v. Ind. Dep’t of Child Servs., 45 N.E.3d 1252

(Ind. Ct. App. 2015) and M.W. v. Ind. Dep’t of Child Servs., 119 N.E.3d 165 (Ind.

Ct. App. 2019). However, upon review, we find both cases inapposite to the

situation at hand. In A.M., the only evidence presented by DCS to support its

CHINS petition was a positive meconium test at the time of A.M.’s birth.

A.M., 45 N.E.3d at 1255-56. Based on the lack of any further evidence, we

declined to find evidence of endangerment. Id. In M.W., DCS became

involved after Mother called law enforcement when her two teenage daughters

got into a physical fight. M.W., 119 N.E.3d at 166-67. The evidence reflected

that, leading up to the CHINS hearing, mother voluntarily participated in

services, was enrolled in counseling, and had set up therapy sessions for both

daughters. Id. at 169. Mother also agreed the child needed therapy and

intended to continue providing it. Id. Finding itself “stunned that the juvenile

court found [c]hild to be a CHINS,” this court reversed the CHINS

adjudication as “[f]rom the outset, by calling the police, [m]other showed that

she simply needed some help—and she got it, through the services provided by

DCS. By the time of the CHINS hearing, it was readily apparent that the child

was not seriously endangered, and even more critically, that the coercive

intervention of the court was not required.” Id.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 8 of 10 [15] Here, the circumstances demand a different outcome than in A.M. and M.W.

At the time of the fact-finding hearing, neither Mother nor Father would admit

that a domestic violence issue existed, despite their prior history. Mother

recanted her initial story that Father was the aggressor and insisted that she

could no longer remember the incident, characterizing it as a disagreement and

argument despite telling Officer Blodgett that Father choked her to the point

where she almost lost consciousness. Father, in turn, blamed Mother and said

that she had harmed him. The trial court found that “Child has been exposed

to domestic violence by Father against Mother.” (Appellant’s App. Vol. II, p.

34). Yet, regardless of who the aggressor was, a problem of domestic violence

exists in the home which neither parent acknowledged. Officer Blodgett

elaborated that the family had a history of domestic violence issues and Mother

testified that without the no-contact order in place, the parties would be living

as a family again. As we have frequently recognized, a Child’s exposure to

domestic violence can support a CHINS finding. In re N.E., 919 N.E.2d at 105.

[16] It appeared that the instant incident of domestic violence was brought on by

Mother’s substance abuse as she had taken “Klonopin and then whatever the

neighbor lady gave her.” (Tr. p. 80). At the hearing, Father minimalized

Mother’s addiction and abuse of her medication. Father does not believe

Mother needs services, instead informing the court that “[s]he’s made a

mistake. She’s corrected. She’s sober today.” (Tr. p. 87). Although Mother

advised the trial court that she has sought treatment for her addiction, she had

yet to provide any proof of this to the FCM.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 9 of 10 [17] Recognizing that a CHINS determination is not a finding of guilt for either

parent, but rather a vehicle to ensure the safety of the child, we conclude that

parents’ actions have seriously endangered the Child and without coercive

intervention of the court, the Child will not receive the care she needs. Neither

Father nor Mother acknowledged the domestic violence in the house, instead

they downplayed it as an argument. Father minimalized the substance abuse

by Mother, and merely regarded her abuse as a mistake. The Child needs a

home environment that is stable and free of domestic violence and substance

abuse. The coercive intervention of the court is required to accomplish this goal

as parents were only living separately due to the no-contact order in place and

Father, although ordered to participate in a domestic violence assessment,

denied domestic violence was present in the home and actively challenged

DCS’s request to order Father to participate in the Batterers Intervention

Program Assessment. Accordingly, the trial court did not abuse its discretion

by adjudicating Child to be a CHINS.

CONCLUSION [18] Based on the foregoing, we hold that the trial court properly adjudicated Child

to be a CHINS.

[19] Affirmed.

[20] Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020 Page 10 of 10