In Re the Matter of: M.G., Child in Need of Services K.H. (Mother) v. Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    FILED
    regarded as precedent or cited before any                                 May 09 2018, 6:49 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
    Amy Karozos                                              Curtis T. Hill, Jr.
    Greenwood, Indiana                                       Attorney General of Indiana
    Kyle Hunter
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In Re the Matter of: M.G.,                               May 9, 2018
    Child in Need of Services                                Court of Appeals Case No.
    49A04-1711-JC-2657
    K.H. (Mother)
    Appeal from the Marion Superior
    Appellant-Respondent,                                    Court, Juvenile Division
    v.                                               The Honorable Marilyn Moores,
    Judge
    Indiana Department of Child                              The Honorable Danielle Gaughan,
    Services                                                 Magistrate
    Trial Court Cause No.
    and
    49D09-1705-JC-1736
    Child Advocates, Inc.,
    Appellees-Petitioners
    Altice, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018                 Page 1 of 9
    Case Summary
    [1]   M.G. (Child) was adjudicated a Child in Need of Services (CHINS) by the
    Marion Superior Court. K.H. (Mother) appeals, arguing that the Department
    of Child Services (DCS) did not present sufficient evidence to support the trial
    court’s CHINS determination.
    [2]   We affirm.
    Facts & Procedural History1
    [3]   Child was born on August 26, 2016, to Mother and J.G. (Father). Father also
    has two children with A.L.: Le.G., born December 29, 2014, and Lu.G., born
    February 17, 2016. Mother, Father, A.L., and the three young children were
    living together in an apartment.
    [4]   Alicia Fry, a permanency case manager with DCS, became involved with
    Mother in December 2016. At the time, the case was classified as an informal
    adjustment due to the fact that Child tested positive for THC through his
    umbilical cord and Mother admitted to using marijuana during her pregnancy.
    As part of an assessment, Mother revealed that she was not getting mental
    health treatment although she claimed she had been diagnosed with bi-polar
    disorder, ADHD, split personality tendencies, and depression. Mother
    admitted that Child is afraid of her. She also informed Fry that she would put
    1
    Father does not appeal the CHINS determination. We therefore set forth the facts as pertinent to Mother.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018                 Page 2 of 9
    food on the carpet to keep Child busy while she and Father were “back in the
    room having alone time,” and that she would give Tylenol to Child to calm him
    down. Transcript at 66.
    [5]   Fry visited Mother’s apartment and noted an abundance of clutter, a mattress
    on the floor, old food on the carpet, and “things you wouldn’t normally find
    inside the apartment like a tire sitting against the wall.” Id. at 67. Fry was
    aware that Mother and Father fought regularly and to such an extent that they
    had been threatened with eviction. Fry believed Mother needed services to
    ensure the safety and well-being of Child. She recommended homebased
    therapy, homebased case work, domestic violence training, mental health and
    substance abuse assessments, and that Mother follow all recommendations of
    those assessments.
    [6]   On May 25, 2017, Mother and Father got into a verbal argument, which turned
    physical when Mother hit Father “several times.” Id. at 29. Father retrieved a
    handgun, pointed it at Mother, and threatened to shoot her. Father then
    pointed the gun at himself and threatened to commit suicide. A.L. and all three
    children were present and witnessed the incident.
    [7]   IMPD Officer Theodore Cragen was dispatched to the apartment. Officer
    Cragen interviewed Mother and she told him what had happened. Mother also
    admitted to having mental health problems and admitted to considering suicide
    every day. Officer Cragen had the opportunity to see the inside of the
    apartment, which he described as cluttered. He saw on an end table, in plain
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 3 of 9
    view, a pipe used for smoking narcotics. He also confiscated a part of the
    firearm Father had pointed at Mother,2 a BB gun, and two swords. Ultimately,
    Officer Cragen arrested Mother for battery and domestic battery, Father for
    pointing a firearm, battery, and domestic battery, and A.L. on an active arrest
    warrant for battery.
    [8]   Given the situation, the Marion County DCS was contacted. Kwanza
    Johnson, a family case manager (FCM) with DCS arrived at the scene. FCM
    Johnson spoke with Father who was in the back seat of a police vehicle. Father
    told her about the fight and explained that he was “stressed out and tired of it,”
    so he went to the bedroom and retrieved the gun. Id. at 48. FCM Johnson also
    spoke with Mother before she was transported to jail and Mother told her that
    she “was tired of dealing with DCS.” Id. at 49. FCM Johnson then went to the
    second-floor apartment. As she approached, she noted a distinct marijuana
    smell coming down the stairwell. Inside the apartment, she observed a mattress
    up against the wall as well as a pack and play and various baby items. There
    was a wet spot on the floor and Child was soaked from his shoulders to his feet
    perhaps from something that had spilled. FCM Johnson took Child and placed
    him in kinship care.3
    2
    After the incident with Mother, but before police arrived, Father dismantled the firearm and his mother
    took parts of it to her house.
    3
    FCM Johnson also took A.L.’s two children into DCS care. A.L. later admitted that her two children were
    CHINS and that coercive intervention of the court was necessary to obtain and maintain a safe and
    appropriate home.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018                Page 4 of 9
    [9]    On May 29, 2017, DCS filed a CHINS petition. A fact-finding hearing was
    held on August 29 and September 26, 2017. Thereafter, the court entered an
    order finding Child was a CHINS. A dispositional hearing was held on
    October 24, 2017, and the court entered a parental participation order the same
    day. Mother now appeals. Additional facts will be provided as necessary.
    Discussion & Decision
    [10]   CHINS proceedings are civil actions, and therefore, “the State 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). On review, we
    neither reweigh the evidence nor judge the credibility of the witnesses. 
    Id.
     We
    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.
    [11]   Where the trial court issues findings of fact and conclusions thereon, we apply a
    two-tiered standard of review. In re R.P., 
    949 N.E.2d 395
    , 400 (Ind. Ct. App.
    2011). We consider first whether the evidence supports the findings and then
    whether the findings support the judgment. 
    Id.
     We will set aside the trial
    court’s findings and conclusions only if they are clearly erroneous and a review
    of the record leaves us firmly convinced that a mistake has been made. 
    Id.
    “Findings are clearly erroneous only when the record contains no evidence to
    support them either directly or by inference.” K.B. v. Ind. Dep’t of Child Servs., 24
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 5 of 
    9 N.E.3d 997
    , 1001-02 (Ind. Ct. App. 2015) (citation omitted). “A judgment is
    clearly erroneous if it relies on an incorrect legal standard.” Id. at 1002.
    [12]   To meet its burden of establishing CHINS status, DCS must prove that the
    child is under eighteen 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
    . Although the acts or omissions of one or both parents
    can cause a condition that creates the need for court intervention, the CHINS
    designation focuses on the condition of the child rather than on an act or
    omission of the parents. In re N.E., 919 N.E.2d at 105. “[T]he purpose of a
    CHINS adjudication is to protect children, not punish parents.” N.L. v. Ind.
    Dep’t of Child Servs., 
    919 N.E.2d 102
    , 106 (Ind. 2010).
    [13]   Mother first argues that DCS did not prove that domestic violence is an
    ongoing issue that poses a risk to Child. Mother’s argument in this regard is
    based solely on the fact that the criminal charges filed against her had been
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 6 of 9
    dismissed prior to the CHINS fact-finding hearing. She asserts that the CHINS
    adjudication “may not be based solely on conditions that no longer exist.”
    Appellant’s Brief at 13 (citing In re R.S., 
    987 N.E.2d 155
    , 159 (Ind. Ct. App.
    2013)).
    [14]   Contrary to Mother’s argument, the dismissal of criminal charges does not in
    and of itself alleviate the concern for Child’s well-being. DCS presented
    evidence that domestic violence in the home was ongoing and that it was to
    such an extent that Mother and Father were threatened with eviction.
    Although the charges against Mother were dropped, such does not change the
    fact that Mother and Father fight on a regular basis. With regard to the most
    recent altercation, Mother and Father fought in front of Child and the other
    minor children. Mother instigated the physical altercation by hitting Father
    several times. The fight escalated to the point where Father retrieved a
    handgun and threatened to shoot Mother before pointing the gun at himself and
    threatening to shoot himself. DCS established by a preponderance of the
    evidence that domestic violence issues within the home pose a risk to Child’s
    well-being.
    [15]   Mother also argues that DCS failed to prove that her mental health posed an
    ongoing risk to Child. Mother asserts that her mental health was not a basis for
    the CHINS petition and that even if it was, DCS presented no evidence as to
    her mental health except for her own statements that she had been diagnosed
    with bi-polar disorder, ADHD, split personality tendencies, and depression.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 7 of 9
    [16]   While the domestic violence incident renewed DCS’s involvement with
    Mother, DCS alleged that Child was a CHINS in part because Mother failed to
    provide Child with a safe, stable, and appropriate living environment by
    receiving proper mental health care. As Mother herself observes, she made
    statements to DCS indicating that she had previously been diagnosed with
    mental health issues. When an officer responded to this most-recent domestic
    violence incident, Mother told the officer that she contemplates suicide every
    day. This evidence is sufficient to support the finding that Mother’s mental
    health posed an ongoing risk to Child.
    [17]   Finally, Mother argues that DCS did not establish that coercive intervention of
    the court was needed. Mother asserts that the fact that she did not participate
    in services prior to the CHINS determination cannot be the basis for the
    CHINS determination because DCS failed to establish that such services were
    needed for Child’s well-being.
    [18]   DCS recommended that Mother engage in homebased therapy, homebased
    case work, domestic violence training, mental health and substance abuse
    assessments, and that Mother follow all recommendations of those assessments.
    DCS related each of the requested services to the facts of the situation before it.
    Specifically, domestic violence training was needed to address the ongoing
    domestic violence between Mother and Father, and especially the most recent
    escalation thereof. Mother’s own statements to DCS as to her mental health
    diagnoses as well as her statement to police that she contemplates suicide every
    day supports the request for a mental health assessment. Mother’s behaviors,
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 8 of 9
    including giving Child Tylenol to calm him down or leaving food on the floor
    to keep Child occupied, demonstrate the need for homebased therapy and
    homebased case work. Prior to the CHINS determination, Mother refused to
    participate in such services because she felt they were unnecessary. DCS has
    established the need for the services and that coercive intervention of the court
    was necessary to secure Mother’s compliance with the requested services.
    [19]   In sum, our review of the record leads us to conclude that the evidence
    sufficiently supports the court’s findings, and those findings support the court’s
    CHINS determination.
    Judgment affirmed.
    Najam, J. and Robb, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 9 of 9
    

Document Info

Docket Number: 49A04-1711-JC-2657

Filed Date: 5/9/2018

Precedential Status: Precedential

Modified Date: 4/17/2021