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

• Court: Indiana Court of Appeals
• Decided: March 9, 2017
• Docket: 49A02-1605-JC-1071
• Status: Published

Opinion

MEMORANDUM DECISION ON REHEARING

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 09 2017, 7:27 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 Curtis T. Hill, Jr. 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: March 9, 2017

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 Roseanne Ang, v. Magistrate Trial Court Cause No. The Indiana Department of Child 49D09-1511-JC-3428 Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1605-JC-1071 | March 9, 2017 Page 1 of 4 Robb, Judge.

[1] R.G. (“Mother”) petitions for rehearing of this court’s opinion in In re V.G., No.

49A02-1605-JC-1071 (Ind. Ct. App. Dec. 28, 2016). In that opinion, we

affirmed the juvenile court’s determination V.G. is a child in need of services

(“CHINS”). Our decision relied upon Mother’s inability to provide V.G. with

his basic needs, Mother’s own adjudication as a CHINS, Mother’s unstable and

inconsistent housing situation, and the fact Mother left V.G. with L.C.

(“Father”) and his paternal grandmother (“Paternal Grandmother”), neither of

whom have established a guardianship, nor has Father established paternity.

We grant rehearing to address Mother’s claim, but reaffirm our opinion in all

respects.

[2] On rehearing, Mother argues our opinion “relies on the fact that Father and

Paternal Grandmother had not established legal guardianship or paternity[,]”

despite the fact this court held in In re C.S., 863 N.E.2d 413, 419 (Ind. Ct. App.

2007), abrogated in part by In re N.E., 919 N.E.2d 102 (Ind. 2010), that failure to

establish paternity was not evidence of neglect. Petition for Rehearing at 7.

Initially, we note our decision in this case did not rely upon Father’s and

Paternal Grandmother’s lack of guardianship and/or paternity; rather, that was

one of numerous factors considered in affirming the juvenile court’s

adjudication of V.G. as a CHINS. Moreover, we disagree with Mother’s

interpretation of In re C.S. and its application to this case.

Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1605-JC-1071 | March 9, 2017 Page 2 of 4 [3] In In re C.S., C.S. was born to unwed parents, Loretta Savage and Christopher

Montgomery. Montgomery was not present at C.S.’s birth, although he did

visit the hospital several times. Savage did not name Montgomery as C.S.’s

father on the birth certificate and Montgomery did not sign a paternity affidavit

at the hospital. Following her birth, C.S. tested positive for benzodiazepines

prompting the hospital to contact the Marion County Department of Child

Services (“DCS”). Based on C.S.’s positive test and Savage’s admission to drug

use during her pregnancy, DCS filed a petition alleging C.S. to be a CHINS.

An initial hearing was held that same day at which Savage admitted the

allegations of the petition and C.S. was placed in foster care. Montgomery did

not appear at the hearing. Following a fact-finding hearing at which

Montgomery did appear, the juvenile court adjudicated C.S. a CHINS.

[4] On appeal, DCS attempted to justify the CHINS adjudication by relying on

Montgomery’s failure to establish paternity. We noted Montgomery had

previously indicated his desire to establish paternity and concluded his “failure

to establish paternity before the fact-finding hearing was not evidence of neglect

on his part that would seriously impair or endanger C.S.” Id. at 419 (internal

quotation omitted).

[5] In re C.S. and the present case are distinguishable. First, In re C.S. does not

establish as a matter of law that a juvenile court can never consider a lack of

paternity or guardianship in a CHINS adjudication, only that DCS could not

rely solely on that fact to support C.S.’s CHINS adjudication. See id. Second, a

failure to establish paternity could not be evidence of serious impairment or Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1605-JC-1071 | March 9, 2017 Page 3 of 4 endangerment as C.S. never lived with Montgomery and was placed in foster

care since birth. Here, V.G. has lived with Father and Paternal Grandmother

since shortly after his birth despite neither of them having a guardianship and

Father never establishing paternity.1 In this case, Father’s failure to establish

paternity does directly implicate V.G.’s well-being because it demonstrates a

failure to assure V.G. can be provided with any medical care he needs.

[6] For the reasons stated above, we reaffirm our decision in all respects.

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

1 DCS’ original concerns cited in their petition were that Father and Paternal Grandmother lacked any form of legal custody and therefore could not meet V.G.’s medical needs. Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1605-JC-1071 | March 9, 2017 Page 4 of 4