In the Matter of M.K., (Minor Child), Child in Need of Services and V.K. (Father) v. The Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 30, 2020
• Docket: 19A-JC-2355
• 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 Mar 30 2020, 9:22 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: Steven J. Halbert INDIANA DEPARTMENT OF Indianapolis, Indiana CHILD SERVICES Curtis T. Hill, Jr. Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana ATTORNEY FOR APPELLEE: CHILD ADVOCATES, INC. DeDe Connor Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of M.K., (Minor March 30, 2020 Child), Child in Need of Court of Appeals Case No. Services, 19A-JC-2355 and Appeal from the Marion Superior Court V.K. (Father), The Honorable Diana Burleson, Appellant-Respondent, Magistrate

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020 Page 1 of 9 v. Trial Court Cause No. 49D15-1905-JC-1260 The Indiana Department of Child Services, Appellee-Petitioner,

and

Child Advocates, Inc., Guardian ad Litem.

Tavitas, Judge.

Case Summary

[1] V.K. (“Father”) appeals the trial court’s order adjudicating his minor child,

M.K. (the “Child”), as a child in need of services (“CHINS”). We affirm.

Issue

[2] Father raises one issue on appeal, which we restate as whether the evidence was

sufficient to support the trial court’s conclusion that the Child is a CHINS.

Facts

[3] The Child was born in 2002 to V.J. (“Mother”), who died in 2018, and Father.

The Child lived at Father’s home with Father’s wife (“Stepmother”), the

Child’s sister, and three step-siblings.

[4] On May 2, 2019, the Department of Child Services (“DCS”) received a report

the Child did not return home from school, and Father told DCS that the Child

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020 Page 2 of 9 was no longer welcome at his home. The same day, Father agreed to a safety

plan for the Child, and the Child was sent to a Stop Over home 1 from May 3,

2019, to May 13, 2019. 2 On May 13, 2019, Father reluctantly allowed the

Child to return home because the Child had nowhere else to go; however, the

Child said she would commit suicide if she had to return to Father’s home.

[5] On May 13, 2019, DCS removed the Child from Father’s home because

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 [C]hild with necessary food, clothing,

shelter, medical care, education or supervision.” Appellant’s App. Vol. II p. 24.

Shortly thereafter, Deja Thomas, an assessment family case manager (“FCM”)

with DCS, conducted an assessment with the Child and Father. Father stated

to FCM Thomas that: (1) he did not want the Child to return home until she

received services outside of the home and he denied he needed services; and (2)

Father reported the Child was acting out sexually and she did not want to

follow the rules at home.

[6] On May 15, 2019, DCS filed a petition alleging the Child was a CHINS

pursuant to Indiana Code Section 31-34-1-1. Specifically, DCS alleged: (1)

Father has failed to provide the child with a safe and stable home; (2) the Child

1 Stop Over is not defined in the record; however, the Child described Stop Over as a “shelter” for “teens and young adults.” Tr. Vol. II p. 20. 2 It appears that Father also attempted to get the Child in a Stop Over home previously.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020 Page 3 of 9 has a history of running away and has not been provided adequate supervision

by Father; (3) the Child has threatened to commit suicide if she is to return

home to Father; (4) Father was unwilling to meet the Child’s needs as Father

was not allowing the Child to return home; and (5) Father has not created an

appropriate, alternative plan for the Child’s care.

[7] Tracy Johnson, an outpatient therapist at Park Center, conducted an

assessment on the Child on July 22, 2019. Johnson diagnosed the Child with

post-traumatic stress disorder, moderate cannabis abuse disorder, and

unspecified depression. At the time of the July 22 assessment, the Child was

already seeing a therapist, Katherine Devinney. 3

[8] The trial court held a CHINS fact finding hearing on September 10, 2019. At

the time of the fact finding hearing, the Child was in foster care. Witnesses

testified to the foregoing events. FCM Thomas testified about her concerns for

the Child, and specifically, that Child did not feel safe in the home and the

Child reported physical abuse in the home. Devinney testified that, based on

disclosures the Child made to Devinney during therapy, she had concerns

regarding returning the Child to Father. The only services Devinney

recommended for the Child was continued therapy with Devinney.

3 Katherine Devinney, a therapist at Lifeline Youth and Family Services in Fort Wayne, has been the Child’s therapist since early July 2019 pursuant to a DCS referral.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020 Page 4 of 9 [9] The Child testified at the fact finding hearing as follows: (1) her relationship

with Father is “non[]existent” and the Child does not want anything to do with

Father, tr. vol. II p. 23; (2) the Child does not get along with her other family

members; (3) the Child has tried to harm herself as a result of those poor

relationships; (4) the Child and Father previously smoked marijuana daily; (5)

the Child does not feel safe returning home; and (6) the Child was willing to

continue working with her therapist and other service providers.

[10] Elizabeth Davids, a permanency FCM with DCS, testified as follows: (1)

Father stated that he has done all he can do to help the Child; (2) Father

believes the Child is the issue; (3) Father is concerned with the way the Child

“uses her body,” and the fact that the Child’s former boyfriend vandalized

Father’s vehicle, tr. vol. II p. 36; (4) Father does not believe that he needs any

services and believes there are no issues with regard to his parenting of the

Child; and (5) Father does not want the Child to return home until she receives

help with her issues. Father was not able to give FCM Davids specific

information about what Father has done in the past to assist the Child.

[11] FCM Davids did not recommend the Child be placed with Father because the

Child is a runaway risk; the Child’s underlying needs would not be addressed;

and Father does not have the willingness to learn about the Child’s needs.

FCM Davids did not believe Father would even allow the Child back into the

home. FCM Davids recommended several services “to help build and repair

the relationship between the family and dad and daughter,” including a parent

family functional assessment and family therapy. Id. at 38.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020 Page 5 of 9 [12] At the close of the fact finding hearing, the trial court adjudicated the Child a

CHINS. The trial court proceeded immediately to disposition. The trial court

ordered Father to participate in the parental participation order, which the trial

court incorporated into its dispositional decree. See Appellant’s App. Vol. II p.

17. The parental participation order ordered Father to participate in a parenting

family functioning assessment, follow the recommendations from that

assessment, and participate in family therapy after a positive recommendation

from the Child’s therapist. Father now appeals.

Analysis

[13] Father argues the evidence is insufficient to conclude that the Child is a

CHINS. CHINS proceedings are civil actions; thus, “the State must prove by a

preponderance of the evidence that a child is a CHINS as defined by the

juvenile code.” N.L. v. Ind. Dep’t of Child Servs (In re N.E.), 919 N.E.2d 102, 106

(Ind. 2010). On review, we neither reweigh the evidence nor judge the

credibility of the witnesses. Id. Here, the trial court entered findings of fact and

conclusions thereon in granting DCS’s CHINS petitions. When reviewing

findings of fact and conclusions thereon, we apply a two-tiered standard of

review. First, we determine whether the evidence supports the findings, and

second, we determine whether the findings support the judgment. In re I.A., 934

N.E.2d 1127, 1132 (Ind. 2010). We will set aside the trial court’s judgment

only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

findings do not support the trial court’s conclusions or the conclusions do not

support the judgment. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020 Page 6 of 9 [14] Indiana Code Section 31-34-1-1 provides that:

. . . [A] child is a child in need of services if, before the child becomes eighteen 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.

[15] “[T]he purpose of a CHINS adjudication is to protect children, not [to] punish

parents.” In re N.E., 919 N.E.2d at 106. A CHINS adjudication is not a

determination of parental fault but rather is a determination that a child is in

need of services and is unlikely to receive those services without intervention of

the court. Id. at 105. “A CHINS adjudication focuses on the condition of the

child . . . . [T]he acts or omissions of one parent can cause a condition that

creates the need for court intervention.” Id. (citations omitted).

[16] Father argues that DCS failed to prove that the Child is a CHINS because: (1)

the only services the Child needs are therapy that the Child is already receiving

and wanted to continue; (2) coercive intervention of the trial court was not Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020 Page 7 of 9 necessary to get the Child the assistance she needed; and (3) Father did not

need any specific services. We disagree.

[17] While the Child has accepted that she will continue her therapy and other

services, Father said multiple times that he did not need services and that there

are no issues with his parenting. Father told DCS the problem is with the

Child, and not with Father. Father has failed to secure an alternative to the

trial court’s intervention. The Child is without a home and the State is required

to intervene. Assisting the Child is not a one-way street, and the fact the Child

is willing to engage in services does not mean coercive intervention is not

necessary. Father does not understand the Child cannot do this alone and is

not willing to help the Child. The trial court ordered Father to participate in a

parenting assessment, follow the recommendations from the assessment, and

participate in family therapy when the Child’s therapist determined the Child

was ready. 4

[18] Father cites In re V.H., 967 N.E.2d 1066 (Ind. Ct. App. 2012), as a “similar

situation” where the mother refused to pick up her child from Lutherwood

because she wanted the Child to receive additional services. Appellant’s App.

Vol. II p. 12. The Mother in J.H., however, was taking action even after DCS

became involved, such as contacting her physician and scheduling a

4 The trial court’s conclusion does not support Father’s contention that the court “did not find the Father needed any particular services.” Appellant’s Br. p. 6. At the very least, Father’s participation in therapy with the Child when she was ready constituted a service by Court intervention.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020 Page 8 of 9 psychological evaluation for her child after learning it would take a significant

amount of time for DCS to obtain one. In this case, FCM Davids testified

Father could not share what has been done to assist the Child other than not

allowing the Child to return to the home.

[19] Father has been clear that he will not participate in services to help the Child

absent court intervention. See cf. In re D.J., 68 N.E.3d 574, 581 (Ind. 2017)

(finding coercive intervention of the court was not needed when parents

completed the parenting curriculum, parents were engaged in services, and

“serious” about doing what DCS asked parents to do). The trial court’s

conclusion is not clearly erroneous.

Conclusion

[20] The evidence was sufficient to adjudicate the Child a CHINS. We affirm.

[21] Affirmed.

Najam, J., and Vaidik, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020 Page 9 of 9