In the Matter of the Mi.C. (Child Alleged to be in Need of Services) and Ma.C. (Mother) Ma.C. (Mother) v. The Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 25, 2020
• Docket: 20A-JC-669
• 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 25 2020, 7:46 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anna O. Holden THE INDIANA DEPARTMENT OF Zionsville, Indiana CHILD SERVICES Curtis T. Hill, Jr. Attorney General of Indiana

Monika P. Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Mi.C. (Child September 25, 2020 Alleged to be in Need of Service) Court of Appeals Case No. and Ma.C. (Mother); 20A-JC-669 Ma.C. (Mother), Appeal from the Marion Superior Court Appellant-Respondent, The Honorable Marilyn Moores, v. Judge The Honorable Gael Deppert, The Indiana Department of Magistrate Child Services and Child Trial Court Cause No. Advocates, Inc., 49D09-1908-JC-2012 Appellees-Petitioners

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 1 of 10 May, Judge.

[1] Ma.C. (“Mother”) appeals the adjudication of her child, Mi.C. (“Child”) as a

Child in Need of Services (“CHINS”). She argues three of the trial court’s

findings are not supported by the evidence and that the remaining findings do

not support the trial court’s adjudication of Child as a CHINS. We affirm.

Facts and Procedural History [2] Child was born on September 6, 2006, to Mother. 1 Child has three siblings:

T.H., who is an adult; I.C., who is a minor; 2 and B., who is deceased. In early

2019, DCS received three reports that Mother, Child, and I.C. were homeless,

Mother was abusing drugs, and Child and I.C. were not enrolled in school.

The Department of Child Services (“DCS”) was unable to locate the family to

investigate the first two reports. On July 25, 2019, a DCS case manager located

Mother in a mobile home. Mother answered the door, and the DCS case

manager testified she recognized Mother based on pictures given to her by the

Marion County Sheriff’s Department. However, when the case manager

identified herself as a DCS employee, Mother denied her identity and refused

the DCS case manager entry to the mobile home.

1 The CHINS order lists two alleged fathers for Child. Neither participates in this appeal. 2 I.C. was also part of the CHINS proceedings, but he ultimately was determined not to be CHINS because his father was able to provide care for him.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 2 of 10 [3] DCS eventually located Child with T.H.; they both were living with T.H.’s

father. DCS learned that T.H.’s father had been convicted of murder and told

T.H. that he and Child could not live with T.H.’s father because Child could

not live in a house where a resident had been convicted of murder. T.H. could

not move and did not know where Mother was, so DCS removed Child from

his care.

[4] On August 12, 2019, DCS filed a petition alleging Child was a CHINS. DCS

alleged Child was a CHINS because the family was homeless after Mother’s

house burned down in May 2019; Child “did not feel safe in the care of

[Mother;]” Child had “witnessed [Mother] holding a pipe and believed

[Mother] to be using drugs[;]” and Mother’s “whereabouts were unknown[.]”

(App. Vol. II at 107.) DCS amended its petition on September 12, 2019, to

include additional information and allegations regarding Child’s alleged fathers.

[5] On December 2, 4, 5, 6, and 9, 2019, the trial court held fact-finding hearings

on DCS’s petition. At some point prior to these proceedings, Child was placed

with T.H., who was no longer living with his father. Mother attended all fact-

finding hearings. On January 23, 2020, the trial court entered its order

adjudicating Child as a CHINS. On February 19, 2020, the trial court held its

dispositional hearing and entered its dispositional decree and parental

participation order the same day. The trial court ordered Mother to, among

other things, complete a parenting assessment and follow all recommendations,

submit to random drug and alcohol screens, participate in a substance abuse

assessment and follow all recommendations, engage in family and home-based

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 3 of 10 therapy, provide DCS with a release of information from her current therapist,

and follow recommendations of service providers.

Discussion and Decision [6] Mother challenges Child’s adjudication as a CHINS. Because a CHINS

proceeding is a civil action, DCS must prove by a preponderance of the

evidence that a child is a CHINS as defined by the juvenile code. In re N.E.,

919 N.E.2d 102, 105 (Ind. 2010). The CHINS petition was filed pursuant to

Ind. Code § 31-34-1-1, 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 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.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 4 of 10 Under Indiana Code section 31-34-1-2, DCS must prove that “the child’s

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

omission of the child’s parent, guardian, or custodian.”

[7] A CHINS adjudication focuses on the needs and condition of the child, rather

than the culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose

of a CHINS adjudication is not to punish the parent, but to provide proper

services for the benefit of the child. Id. at 106. “[T]he acts or omissions of one

parent can cause a condition that creates the need for court intervention.” Id. at

105. “A CHINS adjudication can also come about through no wrongdoing on

the part of either parent[.]” Id.

While we acknowledge a certain implication of parental fault in many CHINS adjudications, the truth of the matter is that a CHINS adjudication is simply that - a determination that a child is in need of services. Standing alone, a CHINS adjudication does not establish culpability on the part of a particular parent. Only when the State moves to terminate a particular parent’s rights does an allegation of fault attach. We have previously made it clear that CHINS proceedings are “distinct from” involuntary termination proceedings. The termination of the parent-child relationship is not merely a continuing stage of the CHINS proceeding. In fact, a CHINS intervention in no way challenges the general competency of a parent to continue a relationship with the child.

Id. (citations omitted).

[8] When a trial court enters findings of fact and conclusions of law in a CHINS

decision, we apply a two-tiered standard of review. In re Des. B., 2 N.E.3d 828,

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 5 of 10 836 (Ind. Ct. App. 2014). We first consider whether the evidence supports the

findings and then whether the findings support the judgment. Id. We may not

set aside the findings or judgment unless they are clearly erroneous. Id.

Findings are clearly erroneous when the record contains no facts to support

them either directly or by inference, and a judgment is clearly erroneous if it

relies on an incorrect legal standard. Id. We give due regard to the trial court’s

ability to assess witness credibility and do not reweigh the evidence; we instead

consider the evidence most favorable to the judgment with all reasonable

inferences drawn in favor of the judgment. Id. We defer substantially to

findings of fact, but not to conclusions of law. Id. Unchallenged findings

“must be accepted as correct.” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind.

1991).

1. Challenged Findings [9] Mother argues three of the trial court’s seventy-five findings are not supported

by the evidence. First, she challenges Finding 16, which states: “Prior to DCS

involvement, [Mother] had not enrolled [Child] in school and had not provided

her temporary caregiver the authority to do so, causing him to seek legal

counsel for guardianship proceedings.” (App. Vol. III at 64.) Mother contends

this finding is not supported by the evidence because she presented

documentary evidence that Child was enrolled in Brown County Junior High

School on August 7, 2019.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 6 of 10 [10] While Mother’s documentary evidence indicated Child was enrolled in school

on August 7, 2019, it also shows that she was withdrawn on August 26, 2019.

During the first fact-finding hearing, Child testified that T.H., with whom she

was living at that time, had enrolled her in Franklin Township Middle School

East with the assistance of DCS. Mother testified that Child had not been

enrolled in school prior to that time and that she intended to enroll Child in

school in Putnam County, where Mother intended to live with Child’s paternal

grandparents. Mother’s argument is an invitation for us to reweigh the

evidence and judge the credibility of witnesses, which we cannot do. See In re

Des. B., 2 N.E.3d at 836 (appellate court cannot reweigh evidence or judge the

credibility of witnesses).

[11] Mother next challenges Finding 32, which states: “Court has no valid

prescription(s) supporting refutation by [Mother] and her parents.” (App. Vol.

III at 65.) In the trial court’s order, it noted ten drug screens Mother completed,

seven of which were positive for hydrocodone or hydromorphone, or a

combination of the two. The family case manager testified that she observed

medication bottles with “[Mother’s] information on [them]” and that one of the

bottles contained hydrocodone. (Tr. Vol. II at 99.) However, Mother did not

submit valid prescriptions to the court as evidence. Mother’s argument is an

invitation for us to reweigh the evidence and judge the credibility of witnesses,

which we cannot do. See In re Des. B., 2 N.E.3d at 836 (appellate court cannot

reweigh evidence or judge the credibility of witnesses).

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 7 of 10 [12] Finally, Mother contends Finding 75 is not supported by the evidence. It states:

“Court finds Mother does not have a stable residence for [Child] at the time of

the fact-finding.” (App. Vol. III at 69.) Mother argues that while she moved

from place to place because she was “assisting friends and family when she

stayed with them,” “[t]here was no evidence that Mother expected [Child] to

move around with her if [Child] were in her care.” (Br. of Appellant at 26.) At

various times prior to the fact-finding hearings, Mother lived with her

grandparents in Putnam County, her great aunt in Marion County, and various

other family members and friends. Mother’s argument that such a chaotic

living situation is stable is an invitation for us to reweigh the evidence and judge

the credibility of witnesses, which we cannot do. See In re Des. B., 2 N.E.3d at

836 (appellate court cannot reweigh evidence or judge the credibility of

witnesses).

2. Trial Court’s Conclusions [13] Mother challenges the trial court’s conclusions of law supporting its

adjudication. We determine whether the findings are sufficient to support the

judgment. In re A.H., 751 N.E.2d 690, 695 (Ind. Ct. App. 2001), trans. denied.

Mother asserts the trial court’s findings “focus largely on stale information

about Mother’s past struggles and do not support the conclusion that she

required the coercive intervention of the juvenile court.” (Br. of Appellant at

28.) In adjudicating Child a CHINS, the trial court found the house where

Mother lived with Child burned down on May 31, 2019. After that, Child lived

with T.H. and did not see Mother from May 31, 2019, to August 12, 2019.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 8 of 10 [14] During that time, Mother did not communicate with Child and “didn[’]t bring

clothes,” so T.H. “was providing for her.” (App. Vol. III at 64.) Family

members testified that prior to the fire, they were unable to locate Mother, and

Child would stay with various family members. The trial court found that

Child testified that “she saw a pipe in her [Mother’s] home, but never

confronted [Mother] about it.” (Id.)

[15] The family went through a significant amount of trauma in a short time.

Child’s sibling, B., committed suicide in December 2018, and the family’s

house burned down in May 2019. Despite this trauma, Mother had not

enrolled Child in therapy, and service providers presented evidence that Mother

had “made no progress in treatment . . . of her diagnosed mental health issues.”

(Id. at 67.) The trial court found Mother testified that “she is taking

medications to help with depression and bipolar diagnoses, but [Mother] did

not provide any evidence to support her testimony.” (Id.)

[16] At the recommendation of Child’s therapist, Mother had not been granted

supervised visitation with Child since August 12, 2019, and had only seen Child

during court hearings. The trial court found “[Child] remains upset about the

house . . . burning to the ground, and that [Child] remains really angry with

[Mother] and hates [Mother] because of pictures of [B.] that [Child] had and

which Court infers [Child] blames [Mother] for being lost in the fire.” (Id. at

67.) Further, the trial court noted testimony from Child’s therapist and the

Guardian ad litem, who believed “an immediate return to Mother[’]s care

would be detrimental to [Child]” and “[Child] is still reluctant to discuss past

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 9 of 10 trauma in therapy sessions and has not had been able to process past trauma

and her feelings, yet.” (Id. at 68.) Finally, the trial court noted “a recent

incident when . . . [Child] ran away. Court infers that [Child] may be a flight

risk when unhappy with her life.” (Id. at 69.)

[17] As Mother does not have stable housing for herself or Child, did not get therapy

for Child following a series of traumatic incidents, has a history of substance

abuse and mental illness, and is not currently permitted to visit with Child, we

cannot say the trial court’s adjudication of Child as a CHINS was clear error.

Contra Matter of E.K., 83 N.E.3d 1256, 1262 (Ind. Ct. App. 2017) (reversing

CHINS adjudication because DCS did not prove coercive intervention of the

court was necessary when parents had made great strides in addressing the

issues that resulted in CHINS investigation, retained custody of their children,

and were actively participating in treatment), trans. denied.

Conclusion [18] The trial court’s findings challenged by Mother were supported by the evidence.

Further, the trial court’s findings supported its conclusion that Child was a

CHINS. Accordingly, we affirm.

[19] Affirmed.

Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-669 | September 25, 2020 Page 10 of 10