In the Matter of A.K., A Child in Need of Services, N.K., Father v. Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    FILED
    Pursuant to Ind. Appellate Rule 65(D),                                      May 24 2018, 6:24 am
    this Memorandum Decision shall not be                                            CLERK
    regarded as precedent or cited before any                                    Indiana Supreme Court
    Court of Appeals
    court except for the purpose of establishing                                      and Tax Court
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Ruth Johnson                                             INDIANA DEPARTMENT OF
    Danielle L. Gregory                                      CHILD SERVICES
    Marion County Public Defender Agency                     Curtis T. Hill, Jr.
    Indianapolis, Indiana                                    Attorney General of Indiana
    Robert J. Henke
    Frances Barrow
    Deputy Attorneys General
    Indianapolis, Indiana
    ATTORNEY FOR APPELLEE CHILD
    ADVOCATES, INC.
    DeDe Connor
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of A.K., A Child in                        May 24, 2018
    Need of Services,                                        Court of Appeals Case No.
    49A05-1711-JC-2658
    N.K., Father,
    Appeal from the
    Appellant-Respondent,                                    Marion Superior Court
    v.                                               The Honorable
    Marilyn A. Moores, Judge
    The Honorable
    Indiana Department of Child                              Jennifer Hubartt, Magistrate
    Services,
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018                  Page 1 of 13
    Appellee-Petitioner,                                     Trial Court Cause No.
    49D09-1707-JC-2334
    and
    Child Advocates, Inc.,
    Appellee-Guardian Ad Litem.
    Kirsch, Judge.
    [1]   N.K. (Father) appeals from the juvenile court’s order adjudicating A.K.
    (“Child”) to be a child in need of services (“CHINS”). Father raises the
    following restated issue for our review: whether there was sufficient evidence
    presented to support the CHINS adjudication.
    [2]   We affirm.
    Facts and Procedural History
    [3]   Father and P.A. (“Mother”) are the parents of Child, and the marriage between
    Father and Mother was dissolved in 2012. At that time, Father was granted
    sole legal and physical custody of Child, and Mother was granted parenting
    time. At all pertinent times of this case, Mother was incarcerated and not able
    to care for Child. In July 2017, Father and Child, who was six years old at the
    time, were living in the home of Father’s father (“Grandfather”) and Father’s
    mother (“Grandmother”) (together “Grandparents”).
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 2 of 13
    [4]   On July 14, 2017, Indianapolis Metropolitan Police Department Officer Frank
    Vanek (“Officer Vanek”) was dispatched to an address on English Avenue in
    Marion County on a 911 call involving Father and a disturbance between
    family members. As Officer Vanek pulled up to the residence, he saw a white
    male, who was later identified as Father, running down the sidewalk and
    frantically waving in an attempt to flag the officer down. When Officer Vanek
    spoke to Father, he noticed that Father was sweating profusely. Father told
    Officer Vanek that he had “caught six-year-old [Child] in bed in between
    [Grandmother] and [Grandfather]” and that Grandfather had molested Child.
    Tr. Vol. II at 23.
    [5]   The longer Officer Vanek was on the scene, the more uneasy he felt about
    Father because Father was sweating profusely, his pupils looked like “pin
    needles,” his behavior was extremely erratic, and he was jumping around. 
    Id. at 35.
    At one point, Father wanted to leave the scene and cross the street to get
    a cell phone. 
    Id. Officer Vanek’s
    training caused him to believe that Father’s
    behavior was related to drug use. 
    Id. at 36.
    Father told Officer Vanek that he
    used meth approximately four days prior and had used it five times in the past.
    
    Id. at 24.
    Father stated he only used meth when he was drunk because he did
    not like the way it tasted. 
    Id. [6] As
    a result of Officer Vanek’s investigation into the family disturbance, he
    placed Father under arrest for battery on Grandmother, and the associated
    criminal case was pending at the time of the fact-finding hearing in this case.
    
    Id. While Officer
    Vanek was present at the residence, Father and the
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 3 of 13
    Grandparents continued to argue in Child’s presence. 
    Id. at 24,
    32. Officer
    Vanek did not feel comfortable leaving Child alone with Grandparents due to
    Father’s earlier allegations, so Officer Vanek called the Indiana Department of
    Child Services (“DCS”). 
    Id. at 33.
    [7]   Family Case Manager (“FCM”) Korrie Frick (“FCM Frick”) arrived at the
    residence in response to Officer Vanek’s call. She spoke with Father at the
    scene and asked him to submit to a drug screen at that time, but he refused. 
    Id. at 40.
    Child was removed from the home and placed in foster care. 
    Id. Four days
    later, on July 18, 2017, DCS filed a petition alleging that Child was a
    CHINS. At the initial/detention hearing, which was held the same day, the
    juvenile court appointed a guardian ad litem and ordered Child to remain in
    foster care.
    [8]   A fact-finding hearing on the CHINS petition was held on September 6, 2017.
    At the hearing, testimony was presented about the incident that precipitated the
    removal of Child from Father’s care. During the time the petition was pending,
    Father had supervised visitation with Child. The original visitation supervisor
    facilitated only one visit with Child and Father because the supervisor stated he
    was not comfortable with Father due to the fact that Father kept asking to see
    the supervisor’s case notes and recorded the supervisor on his phone. 
    Id. at 50.
    However, the second visitation supervisor testified that Father’s visits with
    Child went well and that Father was attentive to Child’s needs, responded
    appropriately to Child’s concerns and needs, had activities planned, displayed
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 4 of 13
    appropriate behavior, exhibited the ability to protect Child, and appeared to
    have a bond with Child. 
    Id. at 45-47.
    [9]    Father testified that he wanted Child to live with him, although he had never
    lived with Child on his own and been the sole caregiver. 
    Id. at 77.
    At the time
    of the hearing, Father testified that he was living in a friend’s home and had
    been doing so for about two weeks. 
    Id. at 66-67.
    While testifying about his
    residence, Father faltered and said “Oh, sometimes – I got so much . . . on my
    mind I – all this just trying to . . . .” 
    Id. at 73.
    Father then testified that he was
    “going to be l[i]ving with [his] girlfriend now” and would start living with her,
    as well as her two daughters, the day of the hearing. 
    Id. at 73-74,
    76. When
    asked why he had testified that he was living with a friend when he actually
    planned to move in with his girlfriend, Father said “You asked me where I was
    living if I’m not mistaken. I got so much on my mind you know if you
    understood.” 
    Id. at 76.
    Father also testified that he was employed and had
    been working at that job for about two weeks at the time of the hearing. 
    Id. at 63-64.
    [10]   There was also testimony that, at the time of the hearing, Child had been
    meeting with a therapist since the beginning of the CHINS case. Child’s
    therapist stated that she met with Child twice a week and that it would be
    helpful for Child to continue therapy in the future. 
    Id. at 54,
    58. Although
    Father did not have health insurance for Child, he testified that he would obtain
    therapy for Child. 
    Id. at 75.
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 5 of 13
    [11]   FCM Kierra Swygert (“FCM Swygert”), who had been assigned to the case
    since July, testified that as part of the CHINS matter, she had referred Child to
    home-based therapy and had referred supervised visitation for Child and
    Father. 
    Id. at 80.
    FCM Swygert also referred Father for Father Engagement
    services, but he declined to participate. 
    Id. at 80.
    FCM Swygert also
    recommended that Father submit to random drug screens. 
    Id. at 80-81.
    [12]   After taking the case under advisement, the juvenile court issued an order on
    October 2, 2017, which adjudicated Child to be a CHINS. The juvenile court
    found that Child was a CHINS because her mental and physical condition was
    seriously impaired and endangered as a result of the inability, refusal, and
    neglect of Mother and Father to provide Child with food, clothing, shelter,
    medical care, education, and supervision due to Mother being incarcerated and
    unable to provide for or parent Child and due to Father engaging in drug use
    and domestic violence in the presence of Child while she was in his care,
    custody, and control. Appellant’s App. Vol. II at 123-24. The juvenile court
    further found that Child needed care, treatment, or rehabilitation, including her
    therapy, that she will not receive or is unlikely to receive without the coercive
    intervention of the juvenile court. 
    Id. at 124.
    Father now appeals.
    Discussion and Decision
    [13]   CHINS proceedings are civil actions, and therefore, it must be proven by a
    preponderance of the evidence that a child is a CHINS as defined by statute. In
    re L.C., 
    23 N.E.3d 37
    , 39 (Ind. Ct. App. 2015) (citing In re N.E., 919 N.E.2d
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 6 of 13
    102, 105 (Ind. 2010)), trans. denied. When we review a CHINS determination,
    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
    the reasonable inferences drawn therefrom. 
    Id. at 39-40.
    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 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.
    [14]   Father argues that the juvenile court erred when it found that Child was a
    CHINS because there was not sufficient evidence to support such a
    determination. Father asserts that there was no evidence presented that Child’s
    physical or mental condition was seriously impaired or endangered as a result
    of his inability, refusal, or neglect to supply Child with the necessary food,
    clothing, shelter, medical care, education, or supervision. Father maintains that
    at the time of the fact-finding hearing, he had housing, employment, food, and
    medical care for Child. He also claims that there was no indication that he used
    drugs in Child’s presence or that any drug use impaired his ability to care for
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 7 of 13
    Child or threatened her safety. Father further contends that there was no
    evidence that the coercive intervention of the juvenile court was necessary
    because Child was unlikely to receive needed care, treatment, or rehabilitation.
    [15]   DCS had the burden of proving by a preponderance of the evidence that Child
    was a CHINS. Ind. Code § 31-34-12-3. Indiana Code sections 31-34-1-1
    through 11 specify the elements of the CHINS definition that the State must
    prove:
    (1) the child is under the age of 18;
    (2) one or more particular set or sets of circumstances set forth in
    the statute exists; and
    (3) the care, treatment, or rehabilitation needed to address those
    circumstances is unlikely to be provided or accepted without the
    coercive intervention of the court.
    In re 
    N.E., 919 N.E.2d at 105
    . Here, the juvenile court adjudicated Child to be a
    CHINS pursuant to Indiana Code section 31-34-1-1, which provides:
    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:
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 8 of 13
    (A) the child is not receiving; and
    (B) is unlikely to be provided or accepted without the coercive
    intervention of the court.
    Therefore, this statute requires “three basic elements: that the parent’s actions
    or inactions have seriously endangered the child, that the child’s needs are
    unmet, and . . . that those needs are unlikely to be met without State coercion.”
    In re S.D., 
    2 N.E.3d 1283
    , 1287 (Ind. 2014).
    [16]   Initially, Father challenges two of the juvenile court’s findings, arguing that the
    evidence did not support the two findings. Finding 24 stated, “Following her
    interviews at the scene and the arrest of [Father], FCM Frick placed [Child] in
    the care of [Grandparents].” Appellant’s App. Vol. II at 122. Finding 33 stated,
    “[Father] has never resided alone with [Child]. Since being placed in the
    custody of [Father], [Child] has always resided with [Grandparents].” 
    Id. at 123.
    Assuming without deciding that these finding were not supported by the
    evidence, they were not the basis of the juvenile court’s CHINS determination.
    The juvenile court based its determination on Father’s drug use and domestic
    violence in the presence of Child. 
    Id. at 124.
    [17]   Father does not challenge the sufficiency of the evidence to support any of the
    other findings by the juvenile court. As Father does not challenge any of the
    remaining findings of facts by the juvenile court, these unchallenged facts stand
    as proven. See In re B.R., 
    875 N.E.2d 369
    , 373 (Ind. Ct. App. 2007) (failure to
    challenge findings by the trial court resulted in waiver of the argument that the
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 9 of 13
    findings were clearly erroneous), trans. denied; McMaster v. McMaster, 
    681 N.E.2d 744
    , 747 (Ind. Ct. App. 1997) (when father failed to challenge specific findings,
    court accepted them as true).
    [18]   Father next contends that the findings do not support the trial court’s
    conclusions. The trial court made the following pertinent conclusions in its
    order finding Child to be a CHINS:
    3. [Child] is a child in need of services because her mental and
    physical condition is seriously impaired and endangered as a
    result of the inability, refusal, and neglect of [Mother] and
    [Father] to provide the child with food, clothing, shelter, medical
    care, education, and supervision.
    ....
    5. [Father] has engaged in drug use and domestic violence in the
    presence of the child and while the child was in his care, custody,
    and control.
    6. [Child] needs care, treatment, or rehabilitation, including twice
    weekly individual therapy, that she will not receive or is unlikely
    to receive without the coercive intervention of the Court.
    Appellant’s App. Vol. II at 123-24.
    [19]   The evidence presented at the fact-finding hearing showed that the police were
    called to Grandparents’ home, where Father and Child were living at the time,
    on July 14, 2017 on a report of a disturbance between family members. When
    Officer Vanek encountered Father, he observed Father to be sweating profusely,
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 10 of 13
    to have pinpoint pupils, to be acting erratically, and to not be able to give any
    specific information about the alleged molestation of Child by Grandfather. Tr.
    Vol. II at 35. At one point, Father attempted to leave the scene to get a cell
    phone. 
    Id. Due to
    his training, Officer Vanek believed that Father’s behavior
    was related to drug use.1 
    Id. at 36.
    Father told Officer Vanek that he used meth
    approximately four days prior and had used it five times in the past, but that he
    only used meth when he was drunk because he did not like the way it tasted.
    
    Id. Child was
    present for all of this. Based on the information Officer Vanek
    obtained concerning the family disturbance between Father and Grandparents,
    Father was arrested for battery on Grandmother at that time. 
    Id. at 24,
    33.
    Because of Officer Vanek’s uneasiness about leaving Child in Father’s care
    because of his behavior and about leaving Child with Grandparents due to the
    allegations by Father, Officer Vanek called DCS. FCM Frick arrived at the
    scene and requested that Father submit to a drug screen, which he refused.
    Child was then removed from the home.
    [20]   Evidence was also presented that, as a part of the CHINS case, DCS referred
    Father for Father Engagement services, random drug screens, and supervised
    visitation with Child. Father declined to participate in Father Engagement
    1
    Father’s reliance of Perrine v. Marion County Office of Child Services, 
    866 N.E.2d 269
    (Ind. Ct. App. 2007),
    which held that a single instance of drug use outside the presence of the child was insufficient for a CHINS
    finding, is misplaced. 
    Id. at 276.
    Here, it was not Father’s drug use alone that formed the basis of the
    CHINS finding. The juvenile court based its determination not only on Father’s drug use, but also on
    Father’s act of domestic violence in the presence of Child and Father’s erratic demeanor and unclear housing
    situation and ability to obtain therapy for Child. Appellant’s App. Vol. II at 121-24.
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018              Page 11 of 13
    services. At the time of the fact-finding hearing, Father did not have stable
    housing for himself and Child. He testified that, as of the date of the hearing,
    he was living in a friend’s home and had been doing so for about two weeks.
    
    Id. at 66-67.
    Father then testified that he was going to be living with his
    girlfriend and her two daughters and planned to begin doing so the day of the
    hearing. 
    Id. at 73-74,
    76. When asked about this discrepancy in living
    arrangements, Father said “You asked me where I was living if I’m not
    mistaken. I got so much on my mind you know if you understood.” 
    Id. at 76.
    Father also testified that he was employed, but had only been working at that
    job for about two weeks. 
    Id. at 63-64.
    Father also had no health insurance
    coverage for Child at the time of the hearing, nor did he have any plans for
    daycare or after school care for Child. 
    Id. at 77.
    The evidence showed that
    Father had never resided alone with Child. 
    Id. Testimony from
    Child’s
    therapist established that she met with Child twice a week, and the therapist
    stated that Child should continue therapy in the future. 
    Id. at 54,
    58. Although
    Father testified that he would obtain therapy for Child, he did not have health
    insurance for Child, and it was not clear that she would receive her therapy
    without court intervention. 
    Id. at 75.
    [21]   Additionally, the juvenile court found that Father’s statements and demeanor at
    the fact-finding hearing were observed to be scattered and erratic and raised
    serious concerns regarding Father’s ability to parent a six-year-old child at that
    time. Appellant’s App. Vol. II at 123. While testifying about living with his
    friend, Father faltered and said “Oh, sometimes – I got so much . . . on my
    Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JC-2658 | May 24, 2018   Page 12 of 13
    mind I – all this just trying to . . . .” Tr. Vol. II at 73. During the fact-finding
    hearing, the juvenile court found that Father often sobbed or stared blankly at
    the lawyers during his direct and cross examinations, then would abruptly
    change his demeanor. Appellant’s App. Vol. II at 123.
    [22]   We, therefore, conclude that sufficient evidence was presented at the fact-
    finding hearing to establish that Father was unable or refused to supply Child
    with necessary food, clothing, shelter, medical care, education, or supervision,
    and Child’s physical or mental condition was seriously impaired or seriously
    endangered as a result and that Child needed care, treatment, or rehabilitation
    that she was not receiving and was unlikely to be provided without the coercive
    intervention of the court. See Ind. Code § 31-34-1-1. Sufficient evidence
    supported the juvenile court’s determination that Child was a CHINS.
    [23]   Affirmed.
    [24]   Baker, J., and Bradford, J., concur.
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