In the Matter of R.G., (Minor Child, Child in Need of Services, and T.C. (Mother) v. The Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 30, 2020
• Docket: 20A-JC-858
• 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 Sep 30 2020, 8:34 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: Megan Shipley INDIANA DEPARTMENT OF Indianapolis, Indiana CHILD SERVICES Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana ATTORNEY FOR APPELLEE: CHILD ADVOCATES, INC. Dede Kristine Connor Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 1 of 11 In the Matter of R.G., (Minor September 30, 2020 Child, Child in Need of Services, Court of Appeals Case No. 20A-JC-858 and Appeal from the Marion Superior T.C. (Mother), Court Appellant-Respondent, The Honorable Rosanne Ang, Magistrate v. The Honorable Mark A. Jones, Judge The Indiana Department of Trial Court Cause No. Child Services, 49D15-1911-JC-2974 Appellee-Petitioner,

and

Child Advocates, Inc., Guardian ad Litem.

Tavitas, Judge.

Case Summary [1] T.C. (“Mother”) appeals from the trial court’s dispositional order, following the

trial court’s adjudication of her minor child, R.G. (“the Child”), as a Child in

Need of Services (“CHINS”). We affirm.

Issues [2] Mother raises two issues on appeal, which we restate as:

I. Whether the trial court abused its discretion in ordering Mother to participate in certain services.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 2 of 11 II. Whether the trial court’s continuation of the Child’s kinship placement is contrary to law.

Facts [3] Mother and S.G. (“Father”) are the biological parents of the Child, who was

born in March 2010. In September 2019, Mother went to Father’s workplace,

argued with Father, and stabbed Father with a knife. Father required

emergency medical treatment. The State filed criminal charges against Mother.

[4] In November 2019, the Marion County Office of the Department of Child

Services (“DCS”) received allegations of physical abuse and neglect regarding

the Child, who reportedly had a black eye and was frequently ill. On

November 21, 2019, DCS family case manager Julie Brown (“FCM Brown”)

interviewed Mother at Riley Hospital in Indianapolis, where the Child was

taken for an examination.

[5] During the interview, FCM Brown observed bruising near the Child’s eye.

Mother initially refused to allow the Child to be examined by physicians. A

preliminary examination revealed that the Child suffered from neuroblastoma

cancer. Although Mother initially refused to allow the Child to be admitted to

the hospital and was combative with hospital personnel, Mother relented and

the Child was admitted to the hospital that day. Also, during the interview,

Mother acknowledged her anger management issues and mental health

diagnoses. FCM Brown administered a drug screen to Mother, and Mother

tested positive for marijuana use. DCS substantiated the allegation of neglect.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 3 of 11 [6] On November 26, 2019, DCS filed a petition alleging that the Child was a

CHINS. In addition to the foregoing, the petition alleged the following:

a. [T.C.], mother of [the Child], has failed to provide the [C]hild with a safe, stable, and appropriate living environment free from substance abuse and with necessary medical care and attention.

*****

j. . . . [Mother] stated she has been diagnosed with a mood disorder, post traumatic stress disorder (PTSD), and schizophrenia.

k. [Mother] is not currently receiving any mental health services, and her untreated mental health issues seriously hinder her ability to care for the [C]hild.

l. Additionally, in September of 2019, [Mother] stabbed the [C]hild’s father, [S.G.], and she currently has pending criminal charges as a result.

m. Furthermore, Mother reported she is behind on her rent, is fearful of being evicted, has used marijuana recently, and she tested positive for marijuana.

n. [Father] has not successfully demonstrated an ability and willingness to appropriately parent the [C]hild, and/or he is unable to ensure the [C]hild’s safety and well being while in the care and custody of [Mother].

o. The [C]hild and family are in need of services they are not receiving and are unlikely to receive without the DCS’[s] and the

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 4 of 11 Court’s involvement, and the coercive intervention of the Court is required to ensure the [C]hild’s safety and well being.

Mother’s App. Vol. II pp. 20-21. The Child was discharged from the hospital in

December 2019. At a pretrial hearing on December 6, 2019, Mother requested

that the Child be placed with an unspecified relative(s). Id. at 50. On or about

December 10, 2019, DCS placed the Child with his godmother, N.D.B.

(“Godmother”). At a pretrial hearing on January 3, 2020, Father requested

relative placement for the Child. The trial court’s order on the January 3, 2020

hearing provides, “DCS objects . . . and is willing to consider paternal relatives

as possible placement for the [C]hild upon receiving specific information from

father.” Id. at 58.

[7] The trial court conducted a fact-finding hearing on February 21, 2020. Based

on Mother’s admission that she “need[ed] assistance to maintain a stable and

appropriate living environment with adequate medical care[,]” the trial court

found DCS’s allegations to be true and adjudicated the Child as a CHINS. Id.

at 62-63. Mother did not admit to any allegations regarding substance abuse or

domestic violence.

[8] On March 5, 2020, DCS filed its predispositional report, wherein DCS

recommended the continuation of the kinship placement with Godmother. The

predispositional report provided, in part, as follows:

2. Placement Recommendation:

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 5 of 11 a. Identify the specific recommended placement followed by the placement’s relationship for each child. If the [C]hild is not currently with the recommended placement, state the reasons(s): Placement with [J.] and [N.B.], Godparents/Kinship.

b. Describe in what ways the recommended placement is the least restrictive and most appropriate setting: This placement is least restrictive and most appropriate because it is in a home where the [C]hild is appropriately bonded to the caregivers and had a previous relationship/bond with them prior to the CHINS opening. The [C]hild is able to maintain essential family connections and all of the [C]hild’s needs, including his extensive medical needs, are being met.

d. Describe in what ways the recommended placement is least disruptive to family life: The current kinship placement allows for the [C]hild to maintain essential family connections. Placement makes the [C]hild available to supervised parenting time and had a relationship with the [C]hild and [C]hild’s mother prior to the opening of the current CHINS. Placement is also very active in the [C]hild’s medical needs/care as the [C]hild is currently going though chemotherapy. . . .

e. Describe in what ways the recommended placement provides the least restraint on the freedom of the [C]hild and parent/guardian/custodian: This placement out of home is a kinship placement that allows for essential family connections to continue. The placement is in Marion county and makes the [C]hild available for parenting time regularly.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 6 of 11 f. Describe in what ways the recommended placement provides a reasonable opportunity for participation by the child’s parent/guardian/custodian: Placement in kinship care allows for the [C]hild to maintain essential family connections, participate in supervised parenting time, and currently is providing an environment where the [C]hild’s extensive medical needs are being met. It is recommended that this kinship placement continue at this time.

g. Describe, if applicable, in what ways the recommended placement is necessary to be consistent with the safety and best interests of the [C]hild and the community: The current placement in kinship care is consistent with the safety and best interest of the [C]hild as the home is free of [domestic violence] and there are no concerns of substance abuse or untreated mental health. The placement is appropriate and is currently meeting the needs of the [C]hild while supporting the goal of reunification.

3. Placement with the [C]hild’s suitable and willing blood or adoptive relative caretaker, including a noncustodial parent, grandparent, aunt, uncle, or adult sibling is inapplicable in that[ ] no one who has come forward is suitable and willing at this point in time to care for the [C]hild.

Id. at 72, 73.

[9] At a dispositional hearing on March 13, 2020, Mother did not object to the

continuation of the kinship placement. DCS requested Mother’s court-ordered

participation in: home-based therapy; random drug and alcohol screens; a

psychological evaluation; and a domestic violence intake or assessment and all

services and recommendations made as a result of the intake or assessment.

Mother objected to DCS’s requested services. That same day, the trial court Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 7 of 11 issued a parental participation order (“PPO”), ordering Mother to complete the

requested services and to comply with resulting recommendations. On March

17, 2020, the trial court entered a dispositional order that incorporated the PPO

and continued Child’s placement with Godmother. Mother now appeals from

the dispositional order.

Analysis I. Services

[10] Mother argues that the trial court abused its discretion in ordering her to submit

to random drug and alcohol screens and a domestic violence assessment

because: (1) Mother and Father do not cohabitate; (2) “Mother did not admit to

marijuana use or domestic violence”; (3) DCS did not prove there was an

“ongoing” domestic violence issue; and (4) “there was no evidence presented . .

. to demonstrate [Mother’s] need for these services.” 1 Mother’s Br. pp. 10, 13.

[11] Following a CHINS determination and a dispositional hearing, the trial court

issues a dispositional order that details the plan of care, treatment, or

rehabilitation required to address the needs of the Child. Ind. Code § 31-34-19-

10. The trial court’s dispositional order must include findings and conclusions

pertaining to a parent’s need to participate in the plan of care of the Child. I.C.

§ 31-34-19-10(2).

1 Mother concedes that the record supports the trial court’s order that she should participate in home-based therapy and a psychological evaluation. Mother also agrees that she requires mental health treatment.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 8 of 11 [12] The CHINS statute provides that, if a trial court has determined that a parent

should participate in a program of care, treatment, or rehabilitation for the

child, the trial court may order the parent to do the following:

(1) Obtain assistance in fulfilling the obligations as a parent [ ].

(2) Provide specified care, treatment, or supervision for the child.

(3) Work with a person providing care, treatment, or rehabilitation for the child.

(4) Participate in a program operated by or through the department of correction.

(5) Participate in a mental health or addiction treatment program.

I.C. § 31-34-20-3.

[13] “Although the [trial] court has broad discretion in determining what programs

and services in which a parent is required to participate, the requirements must

relate to some behavior or circumstance that was revealed by the evidence.” In

re A.C., 905 N.E.2d 456, 464 (Ind. Ct. App. 2009). This Court has recognized

that forcing unnecessary requirements on parents whose children have been

determined to be CHINS can set them up for failure and can result in failed

reunification of the family and even the termination of parental rights. Id. at

464-65.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 9 of 11 [14] The record here reveals that Mother stabbed Father during a September 2019

physical altercation. The trial court’s order requiring Mother and Father to

undergo a domestic violence assessment is, thus, directly related to “some

behavior or circumstance that was revealed by the evidence.” Id. The fact that

Mother and Father do not reside together is not material to the discussion of the

Child’s best interests. As the trial court reasoned at the dispositional hearing:

. . . [Y]ou guys have a very young child with one another and so the severity of [September 2019] situation I would like to address. Even though it doesn’t feel like it right now, the goal of this case is to place [the Child] with an appropriate parent which I’m unable to do if there are such severe incidents that remain unaddressed.

Tr. Vol. II p. 15. Under these circumstances, which transpired mere months

before the CHINS action commenced, requiring Mother to undergo a domestic

violence assessment was both necessary and not against the logic and effect of

the circumstances before the trial court. The trial court did not abuse its

discretion by ordering the domestic violence assessment.

[15] Likewise, regarding the trial court’s order that Mother should submit to random

drug and alcohol screens, the record reveals that Mother admitted to marijuana

use and tested positive for THC at the outset of the CHINS investigation. The

trial court’s order that Mother should submit to drug testing, thus, related to

“behavior or [a] circumstance that was revealed by the evidence” regarding

Mother. A.C., 905 N.E.2d at 464. The trial court did not abuse its discretion in

this regard.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 10 of 11 II. Placement

[16] Mother also argues that the kinship placement with Godmother does not

comport with Indiana Code Section 31-34-19-7, which requires DCS to

consider placement with a blood-relative before it considers other placement.

The record reveals that the predispositional report detailed DCS’s reasons for

seeking the continuation of the kinship placement with Godmother. At the

dispositional hearing, Mother failed to object to DCS’s placement

recommendation. Mother has, thereby, waived this issue. See Cavens v.

Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (“In order to properly preserve an

issue on appeal, a party must, at a minimum, ‘show that it gave the trial court a

bona fide opportunity to pass upon the merits of the claim before seeking an

opinion on appeal.’”) (quoting Endres v. Ind. State Police, 809 N.E.2d 320, 322

(Ind. 2004)).

Conclusion

[17] The trial court did not abuse its discretion in ordering Mother to complete

random drug screens and a domestic violence assessment. Mother’s challenge

to the continuation of the kinship placement is waived. We affirm.

[18] Affirmed.

Kirsch, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-858 | September 30, 2020 Page 11 of 11