In the Matter of: V.G. (Minor Child), Child in Need of Services and R.G. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 28, 2016
• Docket: 49A02-1605-JC-1071
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 28 2016, 9:08 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA In the Matter of: December 28, 2016 V.G. (Minor Child), Court of Appeals Case No. Child in Need of Services 49A02-1605-JC-1071 Appeal from the Marion Superior and Court R.G. (Mother) The Honorable Marilyn A. Appellant-Respondent, Moores, Judge The Honorable Rosanne Ang, v. Magistrate Trial Court Cause No. The Indiana Department of Child 49D09-1511-JC-3428 Services, Appellee-Petitioner.

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 1 of 13 Case Summary and Issues [1] R.G. (“Mother”), a minor, is the mother of two-year-old V.G. A few weeks

after V.G was born, he began living with his father, L.C. (“Father”), and his

paternal grandmother (“Paternal Grandmother”). Mother asked Father to care

for V.G. because the electricity was shut off at her residence, where she lived

with her mother (“Maternal Grandmother”). In October 2015, Maternal

Grandmother kicked Mother out of the house, leaving her with no choice but to

spend a night outside before ultimately ending up in a shelter. The Indiana

Department of Child Services (“DCS”) filed a verified petition alleging Mother

to be a child in need of services (“CHINS”), and Mother was subsequently

adjudicated a CHINS. DCS also filed a verified petition alleging V.G. to be a

CHINS due to Mother’s inconsistent housing and inability to provide for V.G.’s

basic needs. Following a fact-finding hearing, the juvenile court adjudicated

V.G. a CHINS. Mother appeals the juvenile court’s adjudication of V.G. as a

CHINS, raising two issues for our review: (1) whether DCS presented sufficient

evidence to support the juvenile court’s determination V.G. is a CHINS; and (2)

whether the juvenile court’s dispositional order complied with Indiana Code

section 31-34-19-6. Concluding there is sufficient evidence and the juvenile

court’s dispositional order complied with the statute, we affirm.

Facts and Procedural History

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 2 of 13 [2] V.G. is the child of Mother and Father.1 For the first few weeks following

V.G.’s birth, he lived with Mother and Maternal Grandmother at a relative’s

home. However, when the relative failed to pay the electric bill, the electricity

was shut off and Mother asked Father to care for V.G. V.G. has lived with

Father and Paternal Grandmother ever since.

[3] Following V.G.’s birth, Mother had an inconsistent and unstable housing

situation. From April 2014 to June 2014, Mother lived in her aunt’s home with

Maternal Grandmother and Mother’s siblings. In June 2014, Mother, Maternal

Grandmother, and Mother’s siblings moved into a different relative’s house and

lived there until August 2014. From August 2014 to September 2014, Mother’s

family lived in a shelter. In September 2014, Mother and her family lived with a

different aunt, and lived there until Maternal Grandmother found an apartment

in October 2015.

[4] In October 2015, Mother wanted to see V.G. and repeatedly asked Maternal

Grandmother to take her to pick him up. However, Maternal Grandmother

refused and told Mother she had given Paternal Grandmother guardianship of

V.G. without Mother’s knowledge or consent. On Halloween, Mother wanted

to take V.G. trick-or-treating with their family and asked Maternal

Grandmother to pick V.G. up from Father’s house. Maternal Grandmother

initially agreed, but later refused. Mother and Maternal Grandmother then

1 V.G.’s date of birth is April 6, 2014.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 3 of 13 began to argue and Maternal Grandmother “hit [Mother] in [the] head with a

pan.” Id. at 68. Mother called the police, and she and her siblings went to stay

with their father (“Maternal Grandfather”) for the weekend.

[5] The following week, Maternal Grandfather attempted to drop Mother off at

Maternal Grandmother’s house, but Maternal Grandmother refused to let her

come inside. Maternal Grandfather told her to “tell [Maternal Grandmother]

that she needs to let you in . . . she is your mother and she need[s] to let you in.

. . . If not, call my grandma.” Id. at 69. Maternal Grandfather left and Maternal

Grandmother did not let Mother inside the home, so Mother spent the

night outside. Mother went to school the next day and reported the incident

to her high school’s social worker who called DCS. Mother was placed at

Stopover, Inc., a local Indianapolis youth shelter, for “about a week” before

Maternal Grandfather picked her up. Id. at 70. During Mother’s stay at

Stopover, DCS opened a case and began investigating whether she was a

CHINS. Ultimately, Mother was adjudicated a CHINS and custody was

awarded to Maternal Grandfather. Mother began living with Maternal

Grandfather at a relative’s home, and DCS deemed that home “appropriate”

for Mother and approved her living there. Id. at 154.

[6] On November 24, 2015, DCS filed a verified petition alleging V.G. to be a

CHINS. The petition alleged:

1. [Mother], mother of [V.G.], has failed to provide the child with a safe, stable, and appropriate living environment.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 4 of 13 2. [Mother] has not been providing the child with basic care and necessities. 3. [V.G.] has been residing with [Paternal Grandmother] . . . but [Paternal Grandmother] lacks guardianship for the child and is unable to meet his medical needs. 4. [Mother] lacks stable housing, and she has not taken necessary action to adequately address the above-mentioned issues. 5. [Father], alleged father of [V.G.], is unable to ensure the child’s safety and well being while in the care and custody of [Mother]. 6. Due to the foregoing reasons, the coercive intervention of the Court is necessary to ensure the child’s safety and well being.

Appellant’s Appendix at 24.

[7] The juvenile court held a fact-finding hearing on March 28, 2016. At the

hearing, Mother testified that instead of staying with Maternal Grandfather, she

had been staying at her half-sister’s house with several other relatives. This

house had not yet been approved by DCS for Mother to reside there. Mother

also testified she did not have a job, although she was currently looking for one.

As to who would provide monetary support for V.G., Mother testified Maternal

Grandfather and her half-sister’s mother would help provide for V.G.’s basic

needs such as diapers, food, and clothing.

[8] DCS family case manager Shavon Flemmons testified her original concern for

V.G. was that “we had a minor mom and we had a minor child. . . . [M]om

had no place to go. [V.G.] was placed with [Paternal Grandmother] and

[F]ather, but they didn’t have any type of guardianship or custody of him.” Tr.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 5 of 13 at 136. She further testified of her concerns with Mother’s new housing

situation, stating,

I haven’t been able to be in her home and I haven’t been able to verify actually where they are staying and when we came to our last hearing, that was when . . . it was just brought to my attention that she was staying [at her half-sister’s house]. So, she told me . . . [Maternal Grandfather] and her sister’s mother had spoken and, I guess, they had said that . . . she could stay there. I told her that was not an issue, however, I need to know that because if that’s where you’re living, we have to do the proper background checks and fingerprints and things for you to be living there. And . . . that has—has been the only issue that we’ve had, which is just the continued [sic] of not knowing, being able to verify, actually. They say that [Maternal Grandfather’s house] is the address, but I’ve never seen them in that address.

Id. at 143-44.

[9] At the conclusion of the hearing, the juvenile court found the allegations in the

petition to be true and adjudicated V.G. as a CHINS. On April 28, 2016, the

juvenile court issued a dispositional order leaving V.G. in relative care. The

juvenile court further ordered Mother to participate in home-based case

management, parent education, and to follow DCS’ recommendations. As to

Father, the juvenile court ordered him to participate in the Father Engagement

program and to follow DCS’ recommendations. Mother now appeals.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 6 of 13 I. CHINS Adjudication [10] Mother argues DCS did not present sufficient evidence to support the juvenile

court’s determination V.G. is a CHINS. Indiana Code section 31-34-1-1

provides circumstances under which a child may be deemed a CHINS. It

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.

Ind. Code § 31-34-1-1. DCS must prove by a preponderance of the evidence a

child is a CHINS. Ind. Code § 31-34-12-3. Further, the CHINS statutes do not

require that a court wait until a tragedy occurs to intervene. Roark v. Roark, 551

N.E.2d 865, 872 (Ind. Ct. App. 1990). Rather, a child is a CHINS when he or

she is endangered by parental action or inaction. Id. The purpose of a CHINS

adjudication is not to punish the parents, but to protect the children. In re L.C.,

23 N.E.3d 37, 39 (Ind. Ct. App. 2015), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 7 of 13 [11] When we review the sufficiency of the evidence in a CHINS determination,

“[w]e neither reweigh the evidence nor judge the credibility of the witnesses.”

In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). Instead, “[w]e consider only the

evidence that supports the [juvenile] court’s decision and reasonable inferences

drawn therefrom.” Id. We reverse only upon a showing that the decision of the

juvenile court was clearly erroneous. Id.

A. Mother’s Ability to Care for V.G. [12] Mother first argues there is insufficient evidence to establish V.G. “was

deprived of necessary food, clothing, shelter, supervision, medical care, [or]

education[.]” Brief of Appellant at 15. Specifically, she argues because she

placed V.G. with Father and Paternal Grandmother, she did not fail to provide

a safe and stable home for V.G. Initially, we note Father and Paternal

Grandmother both lack a guardianship for V.G., and as of the date of the fact-

finding hearing, Father had not established paternity. Further, the evidence

presented at the fact-finding hearing indicates Mother lived in a shelter on two

separate occasions and spent the night outside alone once—albeit not while

V.G. was in her care—as a result of her parents’ refusal to support her. From

April 2014 until the fact-finding hearing in March of 2016, Mother has lived in

at least six different places and often with different members of her extended

family. Even after her own CHINS proceeding in which DCS determined

Maternal Grandfather’s residence was appropriate for her, Mother decided she

would rather live at her half-sister’s home, which, at the time of the fact-finding

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 8 of 13 hearing, DCS had not yet inspected, approved, or determined was suitable for

Mother.

[13] The evidence further establishes Mother has no ability to provide for V.G.’s

basic needs such as food and clothing. Mother testified she is still a junior in

high school and currently does not have a job or income. As for who would

provide for V.G.’s basic needs, Mother testified Maternal Grandfather and her

half-sister’s mother have offered to help with expenses. Maternal Grandfather

testified, “I could give him all the support that any grandparent would give . . .

their grandchild.” Tr. at 163. However, given the fact Mother has decided to

move out of Maternal Grandfather’s home and his past reluctance to assist

Mother when she needed a place to stay, the juvenile court did not find his offer

to help to be credible. The juvenile court stated,

And, realistically, I do have to wonder, if [Maternal Grandfather] is now saying that he is a positive support, I would have to wonder where that support was when [Mother] had to sleep somewhere—I still don’t know—when he dropped [Mother] off at [her] mom’s. And so I definitely doubt the veracity of that testimony.

Tr. at 196; see also In re K.D., 962 N.E.2d at 1253 (appellate courts will not

reweigh evidence or judge the credibility of witnesses).

[14] Based upon our review of the record, we conclude there is sufficient evidence to

support the juvenile court’s determination V.G. is a CHINS. For most of his

young life, V.G. has been left in the care of Father and Paternal Grandmother,

neither of whom have established a guardianship, nor has Father established Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 9 of 13 paternity. Further, Mother is unable to provide V.G. with basic care that he

needs such as shelter, food, and clothing. Mother has lived in multiple

residences in the last two years, including two stints in local shelters because

she had nowhere to live. She has no income to provide V.G. with his basic

needs, and the juvenile court simply did not find Maternal Grandfather’s

testimony that he would provide for V.G. to be credible. The juvenile court’s

determination V.G. is a CHINS is not clearly erroneous.

B. Coercive Authority of the Court [15] Mother also argues there is insufficient evidence to support the finding that

coercive intervention of the court is necessary to ensure V.G.’s safety. DCS

must prove “the parent’s actions or inactions have seriously endangered the

child, that the child’s needs are unmet, and (perhaps most critically) that those

needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,

1287 (Ind. 2014). The requirement that the child’s needs are unlikely to be met

without the intervention of the court guards against unwarranted State

interference with family life, reserving interference for families “where parents

lack the ability to provide for their children,” not merely where they “encounter

difficulty in meeting a child’s needs.” Lake Cnty. Div. of Family & Children Servs. v.

Charlton, 631 N.E.2d 526, 528 (Ind. Ct. App. 1994) (emphasis in original).

[16] Here, DCS has demonstrated Mother has more than mere difficulty in

providing for V.G.’s needs. Mother has provided little to no care for V.G. since

he was born, nor did she have the ability to, despite the fact she has sole legal

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 10 of 13 custody of V.G. See Ind. Code § 31-14-13-1 (stating a biological mother of a

child born out of wedlock has sole legal custody of the child). As noted above,

Mother has no income and, until recently, has not had a stable living situation

since V.G. was born. Since DCS became involved in Mother’s life, Mother has

found suitable housing which has been approved for her to have unsupervised

parenting time with V.G, and we commend Mother for her recent

improvements and for complying with DCS. However, in light of the fact

Mother is a minor, has no job or source of income, has never consistently taken

care of V.G., and has struggled in the past to find or maintain suitable housing,

the juvenile court’s conclusion that coercive intervention is necessary is not

clearly erroneous.

II. Dispositional Order [17] Finally, Mother argues the juvenile court erred in finding continued supervision

was necessary to protect V.G., and asserts the dispositional order does not

comply with Indiana Code section 31-34-19-6, which states,

If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that:

(1) is:

(A) in the least restrictive (most family like) and most appropriate setting available; and

(B) close to the parents’ home, consistent with the best interest and special needs of the child;

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 11 of 13 (2) least interferes with family autonomy;

(3) is least disruptive of family life;

(4) imposes the least restraint on the freedom of the child and the child’s parent, guardian, or custodian; and

(5) provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian.

[18] We disagree with Mother that the juvenile court’s dispositional order does not

comply with Indiana Code section 31-34-19-6 or that it erred in ordering

continued supervision. The dispositional order granted wardship of V.G. to

DCS and maintained V.G.’s placement in relative care. The juvenile court

ordered Mother to participate in home-based case management, parent

education, and to follow DCS’ other recommendations. The dispositional

order also recognizes it is in V.G.’s best interest to remain outside of Mother’s

care; however, the juvenile court authorized Mother to have unsupervised

parenting time with V.G.

[19] As to Mother’s argument the order was not the least disruptive of family life or

the least restrictive of family autonomy, we note that V.G.—aside from a few

weeks following his birth—has not lived with Mother and the juvenile court

maintained V.G.’s placement in relative care where he has been for almost two

years. Aside from Mother’s ordered participation in parental education and

home-based case management, minimal change occurred in Mother’s or V.G.’s

family life. Further, the juvenile court permitted Mother to exercise

unsupervised parenting time with the ultimate goal of reunification with V.G.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 12 of 13 In sum, Mother has failed to demonstrate the dispositional order did not

comply with the statute or that continued supervision was unnecessary.

Conclusion [20] DCS presented sufficient evidence to prove V.G. is a CHINS and the juvenile

court’s order complied with Indiana Code section 31-34-19-6. Accordingly, we

affirm the juvenile court’s judgment and order.

[21] Affirmed.

Kirsch, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 13 of 13