In the Matter of O.S. (Child), A Child in Need of Services and, R.S. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 19 2017, 5:51 am
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
Jeffery A. Earl Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
Marjorie Newell
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of O.S. (Child), June 19, 2017
Court of Appeals Case No.
A Child in Need of Services 32A05-1701-JC-50
Appeal from the Hendricks
and, Superior Court
The Honorable Karen M. Love,
R.S. (Mother), Judge
Trial Court Cause No.
Appellant-Respondent, 32D03-1606-JC-63
v.
The Indiana Department of
Child Services,
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Appellee-Petitioner.
Barnes, Judge.
Case Summary
[1] R.S. (“Mother”) appeals the trial court’s order finding her daughter, O.S., to be
a child in need of services (“CHINS”). We affirm.
Issue
[2] Mother raises one issue, which we restate as whether the evidence is sufficient
to prove O.S. is a CHINS.
Facts
[3] O.S. was born in June 2012 to Mother and D.S. (“Father”). Although Mother
and Father were married, they separated, and O.S. lived with Mother and had
parenting time with Father. At some point, Father told Mother that he had
touched O.S. inappropriately, that he had sexual fantasies involving children,
and that he wanted to have a threesome with O.S. and Mother; Mother did not
inform the authorities. Mother claimed that she took O.S. to a doctor when she
was three years old to see if O.S. had been molested, that she questioned O.S.,
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and that she called a sex abuse hotline but did not receive a return phone call.
Mother and O.S. were living with Mother’s boyfriend, who was abusive to
Mother, and in approximately May 2016, Mother and O.S. moved in with
Father and his roommate. At that time, four-year-old O.S. had a severe speech
delay and was able to say only twenty to thirty words. However, Mother had
not sought any speech therapy for O.S.
[4] In June 2016, the Department of Child Services (“DCS”) received a report that
Father told a friend that he could not wait for O.S. to start her period so that he
could have sex with her. Police officers interviewed Father, and he admitted to
molesting O.S. He also admitted that he had sexual fantasies about children
and that he told Mother about his fantasies. Mother admitted that she was
aware Father had touched O.S. inappropriately but that she still allowed Father
to have unsupervised contact with O.S. O.S. was removed from Mother’s care
and placed with paternal grandmother. Father was convicted of Level 4 child
molesting, and he is serving a sentence in the Department of Correction.
[5] DCS filed a petition alleging that O.S. was a CHINS based on Indiana Code
Section 31-34-1-1 (inability, refusal, or neglect of a parent to supply the child
with necessary food, clothing, shelter, medical care, education, or supervision),
Indiana Code Section 31-34-1-2 (an act or omission of a parent seriously
endangering the child’s physical or mental health), and Indiana Code Section
31-34-1-3 (child is the victim of a sex offense). Father admitted that O.S. was a
CHINS, but Mother contested the allegations and a date for a fact-finding
hearing was set.
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[6] Mother struggled to understand why O.S. was removed from her care. Shortly
after O.S. was removed from Mother’s care, the guardian ad litem (“GAL”)
attended a visitation between Mother and O.S. that paternal grandmother was
supervising. At the visit, Mother twice told O.S. that she needed to “tell the
truth so [she] could come home. . . .” Tr. p. 117. When the GAL told Mother
not to talk about those things, Mother became angry. At the end of the visit,
Mother said, “I’m so messed up I don’t even know why I’m here.” Id. at 118.
DCS referred Mother for supervised visitations and voluntary home-based care
to assist her with stable housing and employment. When Mother indicated that
she was depressed and anxious, DCS made a referral for a home-based therapist
and a neuropsychological evaluation. Mother did not participate in a
neuropsychological evaluation, but she did participate in therapy. The therapist
testified that Mother was making progress and recommended that she continue
therapy.
[7] Between June 2016 and October 2016, Mother worked at a traveling carnival
and at a fast food restaurant. She moved five times in five weeks, and it was
difficult to maintain contact with her. At one point, Mother moved in with a
new boyfriend a week after meeting him, and he did not pass the DCS
background check. DCS informed Mother that “it would be incredibly difficult
to reunify [O.S.] with her while she was living with [the boyfriend].” Id. at 105.
[8] At a fact-finding hearing in October 2016, Mother had divorced Father. O.S.
was still placed with paternal grandmother, who had started O.S. in speech
therapy. O.S. was also participating in individual counseling. The DCS case
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manager testified that coercive intervention of the court was necessary to help
Mother with stability, parenting skills, and learning to protect O.S.
[9] In November 2016, Mother requested unsupervised parenting time. At an
evidentiary hearing on the motion, Mother’s therapist testified that Mother
continued to blame Father for O.S.’s removal, that Mother struggled to take
responsibility for O.S.’s removal, and that she was not sure Mother “cognitively
grasps all of the needs that the child has to keep her safe.” Id. at 154. The
home-based case management worker testified that they had closed the referral
due to Mother’s noncompliance. He continued, however, supervising
Mother’s visitations with O.S. Mother sometimes came to the visits very angry
at the visitation supervisor and DCS. Sometimes she could calm down, but
other times, they had to end the visit due to Mother’s inappropriate behavior.
Mother also got angry with the DCS case manager and cursed at him. DCS
objected to Mother having unsupervised visitations and recommended
therapeutic visitations.
[10] The trial court found that O.S. was a CHINS. At the dispositional hearing, the
trial court ordered Mother to participate in a parenting assessment, therapeutic
visitations, home-based case management services, individual counseling, and a
neuropsychological evaluation. Mother now appeals.
Analysis
[11] Mother challenges the trial court’s finding that O.S. is a CHINS. “A CHINS
proceeding is a civil action; thus, ‘the State must prove by a preponderance of
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the evidence that a child is a CHINS as defined by the juvenile code.’” In re
K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (quoting In re N.E., 919 N.E.2d 102,
105 (Ind. 2010)). We neither reweigh the evidence nor judge the credibility of
the witnesses. Id. We consider only the evidence that supports the trial court’s
decision and reasonable inferences drawn therefrom. Id. We reverse only upon
a showing that the decision of the trial court was clearly erroneous. Id.[12] “There are three elements DCS must prove for a juvenile court to adjudicate a
child a CHINS.” Id. DCS must first prove the child is under the age of
eighteen. Id. DCS must then prove that at least one of eleven different
statutory circumstances exists that would make the child a CHINS. Id. Finally,
“in all cases, DCS must prove the child needs care, treatment, or rehabilitation
that he or she is not receiving and that he or she is unlikely to be provided or
accepted without the coercive intervention of the court.” Id.[13] Here, the trial court found O.S. to be a CHINS based on Indiana Code Section
31-34-1-1 (inability, refusal, or neglect of a parent to supply the child with
necessary food, clothing, shelter, medical care, education, or supervision),
Indiana Code Section 31-34-1-2 (an act or omission of a parent seriously
endangering the child’s physical or mental health), and Indiana Code Section
31-34-1-3 (child is the victim of a sex offense). Each basis also required DCS to
prove that O.S. needed care, treatment, or rehabilitation that she was not
receiving and that she was unlikely to be provided or accepted without the
coercive intervention of the court. The trial court found that coercive
intervention of the court was necessary and made the following findings:
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17. Mother did not protect [O.S.] from Father. Mother
does not see red flags in others that place [O.S.] at risk
for sexual abuse.
18. The coercive intervention of the Court is necessary so
Mother can receive the counseling and parent skills
training so she can recognize risks to [O.S.’s] physical
and emotional safety that others present and so Mother
can learn how to actually protect [O.S.] in the future.
*****
20. Mother needs counseling, sex abuse education and
training to recognize risks to [O.S.] and ways to
mitigate those risks. Mother will not receive the
education and skills training she needs without the
coercive intervention of the Court. The Court does not
believe Mother will engage in services without Court
intervention.
*****
28. Mother does not have stable housing. While the case
was pending, Mother continued to live with her
boyfriend even though she knew the man would not
pass the DCS background check. This is the second
example of Mother putting her need for housing with a
man ahead of [O.S.’s] need for safety. If DCS and the
Court were not involved [O.S.] would be tagging along
with Mother as Mother moves in and out of various
houses. Currently Mother does not have the ability [to]
recognize warning signs that a person Mother is
attracted to may be a safety threat to [O.S.]. Mother
needs help to recognize warning signs and how to
protect [O.S.]. Mother needs help to achieve some
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financial stability so Mother is not desperate to move in
with anyone who will let her and [O.S.] live with them.
*****
32. The coercive intervention of the Court is necessary to
assure that Mother receives the services she needs so
she can protect [O.S.] when she and [O.S.] are
reunited.
*****
35. Without the coercive intervention of the Court Mother
will not receive the services she needs to learn how to
protect [O.S.] in the future.
Appellant’s App. Vol. II pp. 16-19.
[14] On appeal, Mother argues that, prior to O.S.’s removal, she took steps to
“verify whether a molestation had occurred” and to protect O.S from Father.
Appellant’s Br. p. 10. According to Mother, she questioned O.S., took O.S. to
a doctor, and contacted a sex abuse hotline. She also argues that she attempted
to ensure that Father’s roommate monitored interactions between Father and
O.S. and that she fully cooperated with authorities. She divorced Father and
participated in home-based case work and therapy. Mother also argues that the
counseling and speech therapy were provided by paternal grandmother, not
DCS referrals, and that she would continue with the therapy.
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[15] DCS presented evidence that Mother was aware that Father had molested O.S.;
in fact, Father admitted it to Mother. Despite his admission, Mother continued
to allow O.S. to visit with Father and did not report the molestation to the
authorities. Although she claims that Father’s roommate was monitoring them,
O.S.’s bed was in Father’s bedroom, and his roommate had a separate
bedroom. Shortly before O.S. was removed from Mother’s care, Mother and
O.S. moved in with Father because they did not have housing, which allowed
Father even greater access to O.S. At the time of the fact-finding hearing,
Mother did not have stable employment or housing. She repeatedly moved in
with men that she had recently met. Although she was participating in services
offered by DCS, she still struggled to understand why O.S. was removed from
her care. As for O.S.’s therapies, Mother was aware that four-year-old O.S. had
a significant speech delay but had not arranged for her to receive any treatment
for the delay. Regardless of whether paternal grandmother or DCS arranged
for the treatment, the point is that Mother did not do so and did not protect
O.S. from Father. The trial court’s findings that coercive intervention of the
court was necessary are not clearly erroneous.
Conclusion
[16] The trial court properly found that O.S. was a CHINS. We affirm.
[17] Affirmed.
Baker, J., and Crone, J., concur.
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