In the Matter of: S.G. (Child in Need of Services) A.G. (Father) and M.G. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 8, 2019
• Docket: 19A-JC-1010
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 08 2019, 6:31 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 Amy D. Griner Curtis T. Hill, Jr. Mishawaka, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA In the Matter of: S.G. (Child in November 8, 2019 Need of Services) Court of Appeals Case No. A.G. (Father) and M.G. (Mother), 19A-JC-1010 Appeal from the St. Joseph Probate Appellants, Court v. The Honorable Jason Cichowicz, Judge Indiana Department of Child The Honorable Graham C. Services, Polando, Magistrate Appellee. Trial Court Cause No. 71J01-1810-JC-563

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1010 | November 8, 2019 Page 1 of 8 [1] A.G. (“Father”) and M.G. (“Mother,” and together, “Parents”) appeal the trial

court’s determination that S.G., born in January 2003, is a child in need of

services (“CHINS”) and its dispositional order. We affirm.

Facts and Procedural History

[2] The Indiana Department of Child Services (“DCS”) became involved with S.G.

and his sister in 2012 when he was in third grade, the court found he was a

CHINS in May 2012, and the case was closed in April 2013. DCS became

involved with S.G. again when he was in eighth grade when Mother threw

rocks at him and his friend’s family called a hotline. The court found he was a

CHINS in June 2016, and the case was closed in July 2017. In October 2018,

DCS filed a petition alleging that S.G. is again a CHINS, and the court later

ordered Parents to take reasonable steps to find mental health care for him. On

January 14, 2019, the court ordered that S.G. be placed with a foster family.

[3] In February 2019, the court held a factfinding hearing at which it heard

testimony from Dr. John Peterson, S.G., Family Case Managers Elizabeth

Gibbs and Sheila LeSure (“FCM LeSure”), Court Appointed Special Advocate

Brian Gates (“CASA Gates”), and Parents. According to Dr. Peterson, S.G.

described years of an abusive dynamic in the home and reported that Mother

would goad him to kill himself by hanging or drinking bleach, that she would

break objects and strike him, and that she told him that she should have aborted

him and would have him killed if they lived in India. He indicated that S.G.’s

mood was fearful, S.G. expressed hopelessness, and he had no reason to believe

that S.G. was being manipulative. S.G. testified that Mother hit and locked Court of Appeals of Indiana | Memorandum Decision 19A-JC-1010 | November 8, 2019 Page 2 of 8 Father out of the house when it was cold, Father slept under a storage shed, and

she threatened to kill Father and him. S.G. testified that he was filling a bottle

with water, Mother said that he did not deserve water and that it was hers and

hit him on the back with a frying pan, he ran to the garage, and she locked the

door and did not let him inside for the rest of the night. He testified that

Mother always took their food upstairs and would not let him have any. S.G.

testified that he did not want to return home, the last sixteen years have been

the same, he has had countless therapy sessions, and he does not think anything

can be done. He testified that Mother told him that, if he testified against her,

she would kill him, Father, and herself.

[4] FCM LeSure recommended that S.G. participate in counseling to address

trauma and not have visits with Parents and stated that Parents felt S.G. did not

need counseling. She indicated that she visited S.G. at school and saw swelling

where he was struck with a pan and that he flinched when a supervisor touched

the area. She testified that S.G. disclosed emotional, verbal, and physical abuse

and repeatedly requested to be removed from the home and said that he was not

safe in the home. She stated that DCS had a meeting to discuss an informal

adjustment, which Parents refused. CASA Gates testified that, after meeting

with S.G. three times and speaking with his foster mother, the mother of his

best friend, a director at his high school, his neighbor, and his sister, among

others, he believed that S.G. was a CHINS. He testified that S.G. had a lot of

anxiety about the proceedings and is very afraid of going home. He

recommended that S.G. not return home, that S.G. and his sister emphasize

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1010 | November 8, 2019 Page 3 of 8 that they have been subjected to retaliation when they have gone home, and

that he had concerns for S.G.’s safety and mental well-being. He stated that

S.G.’s neighbor heard bloodcurdling yelling from Mother inside the home, and

was afraid for S.G. He testified that S.G. does not want visitation and he did

not recommend visitation.

[5] Mother testified that she never deprived S.G. of food and that she kept some

snacks in her bedroom. She stated that she always said she was glad that S.G.

is her son, S.G. was not honest, and the neighbor’s allegations were false.

Father testified that the rule in his house is that no one can go to bed angry or

hungry. He said that he had an issue with the neighbor who had weekend

parties. The court found that Parents were largely not credible, the picture they

painted was far too rosy, and that S.G. is credible and has been the victim of

physical abuse. It found that Parents withdraw and actively deprive S.G. of

basic needs such as food and shelter, that as a result S.G.’s physical and mental

condition is seriously impaired and endangered, and that he is a CHINS.

[6] DCS’s predispositional report stated that S.G. is intelligent, insightful, and

polite, gets along with peers and adults in the community, has friends at school,

in the foster home is characterized as focused and respectful, has outstanding

performance in his classes, and participates in soccer and tutoring. The report

recommends that Parents complete psychological, psychiatric, and domestic

violence evaluations and refrain from contact until the court orders otherwise.

It states that out-of-home placement is appropriate, S.G. has established a

trusting relationship with the foster placement, the foster home is willing to

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1010 | November 8, 2019 Page 4 of 8 work with providers to facilitate visitation with Parents as deemed appropriate

by the court, S.G. should be protected from contact with Parents due to the

nature of the case including emotional and physical abuse, and Parents should

surrender S.G’s birth certificate and passport.

[7] In April 2019, the court held a dispositional hearing at which family case

manager Deborah Banghart indicated that she adopted the recommendations in

the predispositional report as her testimony. Parents requested that S.G. be

returned to them and argued they both had PhDs and are respectable citizens in

the community and no criminal charges had been filed against them. They

argued that they are very strict and that, because S.G. is in a foster home, he

gets to socialize on the weekends, have his license, and go on trips. CASA

Gates stated that he supports DCS’s recommendations and that he does not

support S.G. returning home. The court stated that Parents deny that any

abuse occurred and blame S.G. for everything and that contact with Parents

would cause S.G. harm. The court approved the services set forth in in the

predispositional report, denied Parents’ request that S.G. return home, and set a

review hearing. The court stated in its dispositional order that remaining in the

home would be contrary to S.G.’s welfare, he needs protection, and reasonable

efforts were made by DCS to prevent removal, and it ordered Parents to

complete psychological, psychiatric, and domestic violence evaluations and to

refrain from any contact with S.G. until the court orders otherwise. Parents

filed a motion to modify the dispositional order to remove the requirements that

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1010 | November 8, 2019 Page 5 of 8 they obtain psychiatric and domestic violence evaluations, which the court

denied.

Discussion

[8] Parents claim the trial court’s CHINS determination is clearly erroneous, S.G.’s

health was not endangered, he did not suffer any injury, and he was not

struggling academically or deprived of basic necessities. They assert they were

exercising parental discipline, that he ran away from home, that his punishment

was not severe, and that his allegations defy logic. The State argues that the

trial court’s judgment is not clearly erroneous and that it had the opportunity to

assess S.G. and Parents’ credibility.

[9] We do not reweigh the evidence or judge the credibility of witnesses and

consider only the evidence that supports the trial court’s decision and

reasonable inferences drawn therefrom. In re S.D., 2 N.E.3d 1283, 1286-1287

(Ind. 2014), reh’g denied. We apply the two-tiered standard of whether the

evidence supports the findings and whether the findings support the judgment.

Id. At the time, Ind. Code §§ 31-34-1-1 provided:

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:

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1010 | November 8, 2019 Page 6 of 8 (A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court.

(Subsequently amended by Pub. L. No. 198-2019, § 8 (eff. Jul. 1, 2019)). Ind.

Code § 31-34-1-2 provides in part that a child is a CHINS if the child’s physical

or mental health is seriously endangered due to injury by the act or omission of

the child’s parent and the child needs care, treatment, or rehabilitation that the

child is not receiving and is unlikely to be provided or accepted without the

coercive intervention of the court. The CHINS statute does 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). Because a CHINS determination regards the status of the

child, a separate analysis as to each parent is not required in the CHINS

determination stage. In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). The purpose

of a CHINS adjudication is to protect children, not punish parents. Id. The

resolution of a juvenile proceeding focuses on the best interests of the child,

rather than guilt or innocence as in a criminal proceeding. Id.

[10] The trial court heard extensive testimony from S.G. and his DCS case

managers and found that Parents were not credible, that S.G. was credible, and

that his physical and mental condition is seriously impaired and endangered as

a result of Parents’ refusal to provide basic necessities such as food and shelter.

To the extent Parents invite us to reweigh the evidence and judge the credibility

of witnesses, we are unable to do so. See In re S.D., 2 N.E.3d at 1286. The

evidence as set forth above and in the record supports the trial court’s findings

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1010 | November 8, 2019 Page 7 of 8 and determination that S.G. is a CHINS and that the coercive intervention of

the court is necessary.

[11] Parents also argue that they should have visitation with S.G. Once a child is

determined to be a CHINS, the court holds a hearing to consider alternatives

for the child’s care, treatment, placement, or rehabilitation, the participation of

the parent, and the financial responsibility for the services provided, and it

issues a dispositional decree. See In re N.E., 919 N.E.2d at 106 (citing Ind. Code

§§ 31-34-19-1, -10). Ind. Code § 31-34-21-5.5 provides that the department must

make reasonable efforts to reunify families and that, in determining the extent

to which reasonable efforts to reunify or preserve a family are appropriate, the

child’s health and safety are of paramount concern. CASA Gates and DCS

recommended that Parents not have visitation until further court order, and the

record reveals there is a concern of retaliation and S.G. does not want

visitation. According to DCS, S.G. is traumatized, the foster parents are

willing to facilitate visitation with Parents as deemed appropriate by the court,

and S.G. should be protected from contact with Parents. The court noted that

Parents deny that any abuse occurred and blame S.G. for everything, and

appropriately found that S.G. needs protection and that contact with Parents

would cause S.G. harm.

[12] For the foregoing reasons, we affirm the trial court’s judgment.

[13] Affirmed.

Altice, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1010 | November 8, 2019 Page 8 of 8