In the Matter of: L.S. and M.S. (Minor Children) Children in need of Services and P.P. and S.P. (Guardians) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Aug 23 2019, 6:47 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P.P. (GUARDIAN) Curtis T. Hill, Jr.
Roberta L. Renbarger Attorney General of Indiana
Fort Wayne, Indiana Monika Prekopa Talbot
Deputy Attorney General
ATTORNEY FOR APPELLANT Indianapolis, Indiana
S.P. (GUARDIAN)
Timothy E. Stucky
Stucky, Lauer & Young, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: August 23, 2019
L.S. and M.S. (Minor Children) Court of Appeals Case No.
Children in need of Services 19A-JC-264
and Appeal from the Allen Superior
Court
P.P. and S.P. (Guardians),
The Honorable Cynthia Amber,
Appellants-Respondents, Judge Pro Tempore
v. The Honorable Sherry A. Hartzler,
Magistrate
The Indiana Department of Trial Court Cause No.
Child Services, 02D08-1710-JC-682
Appellee-Petitioner. 02D08-1710-JC-683
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Robb, Judge.
Case Summary and Issue
[1] S.P. and P.P. (“Guardians”) appeal the juvenile court’s determination that the
minor children in their care, L.S. and M.S. (“Children”), are children in need of
services (“CHINS”). Guardians raise the sole issue of whether the Allen
County Department of Child Services (“DCS”) presented sufficient evidence
supporting the juvenile court’s determination. Concluding there was sufficient
evidence to support the juvenile court’s judgment, we affirm.
Facts and Procedural History
[2] C.P. and D.S. (“Parents”) are the biological parents of L.S., born November 30,
2005, and M.S., born April 20, 2007. S.P. and her husband, P.P., began caring
for the Children, who are the nieces of their daughter-in-law, when L.S. was
two and one-half years old and M.S. was fifteen months old. Eventually,
Guardians were granted joint legal custody of the Children. 1 Both of the
Children suffer from fetal alcohol developmental issues and attention-
1
The exact details surrounding the events leading to Guardians obtaining custody of the Children are
unclear.
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deficit/hyperactivity disorder. In addition, L.S. has been diagnosed with
autism and reactive attachment disorder.2
[3] Guardians first became involved with DCS in 2015 and entered into an
informal adjustment to address the Children’s educational needs. The Children
were enrolled in public school because DCS was involved and upon closure of
the informal adjustment, Guardians removed the Children from school. DCS
most recently became involved with the family in September 2017 due to
allegations that the Children were not receiving proper schooling and the
conditions of Guardians’ home were unsuitable and unsanitary – specifically,
that the home was extremely dirty, contained maggots and rats, and that
Guardians were hoarding items.
[4] DCS investigator Sara Murriel visited the home on September 28, 2017, and
observed the condition of the home. Boxes were piled shoulder-high in nearly
every room of the house leaving only a single path in most rooms, making it
difficult to maneuver through the house. The kitchen smelled of old food and
was filled with dirty dishes, rotten food, and canned goods that had been
expired for years. A package of chicken had been left out on the kitchen
counter, and Murriel observed maggots crawling on the chicken. The back
patio of the house, where the family ate most of their meals, was riddled with
2
Both children are missing multiple chromosomes, have sensory processing disorders, and suffer from
behavioral and executive functioning issues.
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“overflowing cat litter boxes” and the garage was “completely packed full of
items[,]” preventing Murriel from entering. Transcript, Volume 1 at 11.
[5] In addition, the family has roughly eighteen to twenty-five cats.3 The cats had
damaged or destroyed numerous items by urinating and defecating on the items
and a strong scent permeated the house. S.P. told Murriel they had recently
moved into the house. At the time of the visit, S.P. also informed Murriel that
she was homeschooling the Children. When Murriel asked S.P. for
documentation regarding the homeschooling, S.P. was unable to provide any.
The Children attended pre-kindergarten, kindergarten, and first and third grades
in public school, and were homeschooled for second, fourth, and fifth grades.
Prior to DCS’ involvement in the instant matter, Guardians utilized numerous
community resources to address the Children’s special needs, attended
occupational therapy, had sought medical care from roughly fifteen doctors,
and took part in various social organizations and events.
[6] Based on the conditions of the home, Murriel submitted a referral for
emergency services from SCAN’s Intensive Intervention Team (“IIT”) to help
the family declutter, organize, and clean the home. The case was transferred to
DCS family case manager (“FCM”) Jennifer Vanstrom. In October 2017, IIT
“cleaned the kitchen, mopped the floors, swept the floors, picked up, [threw
away] any food that was spoiled . . ., threw away cans that didn’t look right, put
3
Testimony established that not all of the cats stayed inside. There is no evidence as to how many cats lived
inside the home and how many lived outside.
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boxes in the basement, put any items in the certain rooms where they
belong[ed].” Id. at 88. Following IIT’s assistance, SCAN home-based
caseworker, Nicoma Cook, continued to assist the family in keeping the home
sanitary and organized.
[7] On October 17, 2017, DCS filed its petition alleging the Children were CHINS.
Following an initial hearing, the juvenile court ordered Guardians to participate
in services and ordered the Children’s continued placement in Guardians’
home. Guardians were ordered to each complete a diagnostic assessment,
enroll in home-based services, follow all recommendations, and attend and
participate in a family team meeting within fourteen days and follow
recommendations.
[8] The Children began meeting with a licensed family therapist and L.S. worked
with a therapist from the Park Center. With respect to education, DCS
coordinated with Growing Minds to provide educational and behavioral
support for the Children. The Children began to work with a Growing Minds
tutor in early January 2018. The sessions initially began in Guardians’ home
but after one or two visits, the tutor concluded the in-home environment was
not conducive to learning as the Children were easily distracted by the
numerous cats and clutter and unable to concentrate in the home. Therefore,
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the tutor decided to work with the Children at the library where they worked on
math, reading, language, and were assigned homework each night.4
[9] During the pendency of the case, DCS filed two amended petitions and then,
on March 8, 2018, filed its third (and final) amended petition alleging the
Children were CHINS, as defined in Indiana Code section 31-34-1-1, that read
in relevant part as follows:
Inability, Refusal or Neglect, I.C. 31-34-1-1: 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 the
child needs care, treatment, or rehabilitation that the child is not
receiving; and is unlikely to be provided or accepted without the
coercive intervention of the Court.
For Educational neglect, See also, The Compulsory School
Attendance law, I.C. 20-33-2-6: A child must attend school until
one of the following occurs: (1) the child graduates from high
school; (2) the child reaches eighteen years of age; or (3) the child
is sixteen or seventeen years of age and is given written consent
to withdraw by his parents and his principal at an exit interview.
It is unlawful for a parent to fail, neglect or refuse to send their
child to school for the “full term” of School Corporation where
the child resides; and the child needs care, treatment, or
rehabilitation that the child is not receiving; and is unlikely to be
4
Expectations were modified due to the Children’s learning disabilities.
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provided or accepted without the coercive intervention of the
Court.
[S.P.] Appellant’s Appendix, Volume 2 at 75-76.5 A fact-finding hearing was
held on April 18, May 1, June 4, July 24, and September 4, 2018.
[10] On November 30, 2018, the juvenile court entered a written order containing
the following findings regarding its CHINS determination:
12. [T]he home was deplorable and cluttered consisting of
box[es] piled shoulder high, maggots crawling on old food, a foul
odor about the residence, and the outside including the front
porch was piled with items, trash and old food.
13. [DCS] attempted to allow the family to address the needs
of the home and [C]hildren prior to initiating these current
proceedings; however, even with the involvement of intensive
home base[d] services through a community agency, namely
SCAN, the home remained below standards.
14. [O]n the last day of these proceedings, it was evident that
the conditions of the home had improved; however, it was also
evident that whether the conditions remained improved was fluid
from day to day. It was through the continued provision of
services that the home remained in a minimally suitable
condition for the [C]hildren to remain place[d] with the
[Guardians].
15. [W]hen [DCS] began its investigation[, S.P.] could not
produce a calendar to show when she conducted educational
5
Identical allegations were made as to both L.S. and M.S.
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activities. . . . [W]hen SCAN intensive homebased services were
implemented into the home in October of 2017, [S.P.] could not
find the educational materials when asked by homebased case
manager Nicoma Cook.
16. Throughout the course of these proceedings[,] . . . neither
guardian has produced any information concerning the
curriculum or materials being utilized in the home schooling.
Although, [S.P.] claims that she has provided [DCS] with her
materials, through nearly five (5) days of trial, neither guardian
produced any tangible evidence of educational materials or even
a curriculum.
17. [A]lthough the [G]uardians had an area of the house
dedicated to education, there was old and new feces from the
families [sic] over 13-18 cats in and out of the home. . . .
[A]lthough [S.P.] identifies computer games, movies and other
learning games as educational activities, . . . the cats have
destroyed some educational material by defecat[ing] and
urinating on the items.
***
21. [T]he [Children] have struggled with impulsivity and have
engaged in risky behaviors including potential elopement with
strangers. . . . [T]he level of the [Children’s] behavioral needs is
overwhelming and the [G]uardians are not able to provide
appropriate education for the [C]hildren. . . . [The family
therapist] does not recommend a public-school setting and
[recommends] an in home specialized educational service
through an outside source to provide and monitor[ ] the
[C]hildren’s education.
***
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24. [A]lthough the [C]hildren were making progress while
working with Growing Minds, progress was slow due to the
[C]hildren and the [G]uardians failing to ensure homework was
done. . . .
25. [W]henever the [C]hildren have come into contact with
trained educators, they made progress; evidencing the fact that
[they] benefit from formal educational instruction.
26. [A]lthough [S.P.] contends a formal school setting is not
equipped to handle the special needs of the [C]hildren, [S.P.] has
not established what those accommodations should be and how
she is addressing them in her home.
27. [DCS] has provided multiple opportunities for [S.P.] to
look into other educational opportunities for which [sic] [S.P.]
resisted at all times relevant.
28. [S.P.] has been opposed to the intervention of any services
to assist in the education of the [C]hildren. This is evident from
her lack of follow through after the 2015 program of informal
adjustment and the fact that [S.P.] was not happy with Growing
Minds and enrolled the [C]hildren in another educational service.
29. [B]y the time of the last day of trial, [S.P.] was only
permitting the [C]hildren to attend educational services two days
a week as she does not want to utilize the financial services
available through [DCS]. . . . [A]t the time of trial the [C]hildren
were not able to access more than 2 days of education per week[.]
30. [I]t is harmful to the well-being and development of these
[C]hildren to not receive a proper and adequate education.
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Appealed Order at 3-4. Based on these findings, the juvenile court concluded
the Children were CHINS:
[The Children’s] mental conditions are seriously impaired as a
result of the inability, refusal, and neglect of the [C]hildren’s
parents and [G]uardians to provide them with suitable care,
supervision, and education.
The Court further concludes that the [C]hildren need care,
treatment and rehabilitation that they are not receiving and are
unlikely to be provided without the coercive intervention of the
Court.
. . . [Guardians] have not acted with malice. However, . . . they
are overwhelmed and not situated and equipped to provide these
[C]hildren with their educational needs. . . . [T]he condition of
the home remains variable and without intervention of services,
the home is likely to return to the previous deplorable state.
The Court does not conclude or rule as to the manner in which
the [Children] should be educated (i.e. in a tradition[al] setting
vs. an untraditional setting). The Court concludes only that they
are not being properly educated by their Guardians[.]
Id. at 5. Guardians now appeal.6 Additional facts will be supplied as necessary.
Discussion and Decision
6
S.P. and P.P. initially appealed under separate cause numbers. However, per order of this court, the
appeals were consolidated. The parties have filed individual briefs.
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I. Standard of Review
[11] A CHINS proceeding is a civil action and thus, requires the State to prove by a
preponderance of the evidence that a child is a CHINS as defined by statute. In
re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). “Preponderance of the evidence”
“simply means the greater weight of the evidence.” Kishpaugh v. Odegard, 17
N.E.3d 363, 373 (Ind. Ct. App. 2014) (quotation omitted). On appellate review
of a juvenile court’s determination that a child is in need of services, we do not
reweigh the evidence or judge the credibility of the witnesses. In re S.D., 2
N.E.3d 1283, 1286 (Ind. 2014). Rather, we consider only the evidence
supporting the juvenile court’s decision and any reasonable inferences arising
therefrom. Id. at 1287. Where, as here, the juvenile court enters findings of fact
and conclusions thereon, we apply a two-tiered standard of review. In re A.M.,
121 N.E.3d 556, 561 (Ind. Ct. App. 2019), trans. denied. We first consider
whether the evidence supports the findings and then whether the findings
support the judgment. Id. We will set aside the juvenile court’s findings and
conclusions only if they are clearly erroneous and our review of the record
leaves us firmly convinced a mistake has been made. Id.
II. CHINS Determination
[12] Guardians argue there is insufficient evidence supporting the Children’s CHINS
adjudication. Specifically, they challenge the juvenile court’s conclusion that
the Children are unlikely to be provided with safe and sanitary home conditions
and proper education without coercive intervention of the court. We disagree.
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[13] “[T]he purpose of a CHINS adjudication is to protect children, not punish
parents.” In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). Accordingly, a CHINS
adjudication focuses on the child’s condition and status and a separate analysis
as to each parent (or guardian) is not required at the CHINS determination
stage. Id. at 105-06. There are three basic elements DCS must prove for a
juvenile court to adjudicate a child a CHINS: that the child is under eighteen
years of age; one or more of the statutory circumstances outlined in Indiana
Code sections 31-34-1-1 through -11 exists; and the care, treatment, or
rehabilitation required to address those circumstances is unlikely to be provided
or accepted without the coercive intervention of the court. Id. at 105.
[14] Here, DCS alleged that the Children were CHINS pursuant to Indiana Code
section 31-34-1-1. To meet its burden, the State must prove that the child is
under age eighteen,
(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.
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Ind. Code § 31-34-1-1 (2005). Following the hearing, the juvenile court
concluded the Children’s mental conditions are seriously impaired as a result of
Guardians’ inability, refusal, and neglect to provide them with appropriate care,
supervision, and education, and that the Children need care they are not
receiving and are unlikely to receive without the coercive intervention of the
court. See Appealed Order at 5.7
[15] With respect to the home, the juvenile court concluded that its condition,
although improved, remains variable and, without intervention, will likely
return to its “previous deplorable state.” Id. Guardians argue that the
condition of the home has significantly improved since DCS’ initial
involvement and any safety concerns have been alleviated. Although the
uncontroverted evidence demonstrates that the conditions of the home have, in
fact, improved, additional evidence in the record also supports the juvenile
court’s finding that the conditions remain variable.
[16] FCM Vanstrom has been visiting the home weekly since October 2017 and her
last visit occurred on June 1, 2018, several days before her testimony at the fact-
finding hearing. Vanstrom testified that she had an ongoing concern about the
condition of the home and agreed that Guardians “are overwhelmed with
moving and meeting the needs of the kids at the same time and that’s why some
of the house conditions aren’t always being addressed appropriately[.]” Tr.,
7
There is no dispute that a lack of proper education and unsanitary home conditions seriously impair the
Children’s mental condition and is harmful.
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Vol. 1 at 160. She indicated that the number of cats in the home is an issue. In
fact, on several occasions she observed a “couple piles for [sic] feces in the room
that was dedicated for the [Children’s] school and education room.” Id. at 138.
She discussed the accidents with Guardians and S.P. told her that the cats have
had accidents in other places in the home. Vanstrom also testified that she and
Guardians had many discussions about the cats during which Guardians
indicated their plan to find homes for the cats or take some to the shelter. To
Vanstrom’s knowledge, Guardians did not take any steps toward finding homes
for the cats. At that time of the hearing, the family had about twenty-five cats.
[17] Furthermore, Vanstrom testified that the family still struggles with maintaining
the cleanliness of the home, which causes her concern about the sanitation of
the house. SCAN has helped and continues to help the family declutter the
home and maintain a schedule to keep the house clean and sanitary. Another
concern for Vanstrom was that she had to constantly remind the family to
complete her requests and agreed they have “been hesitant at times to follow
through with many of the things that are put in place to try to help” them. Id.
at 155. In addition, the safety of the basement was of particular concern
because it appeared that L.S. slept on a cot in an area of the basement
surrounded by items that were stacked high and could easily fall on her. Based
on the evidence in the record, there is sufficient evidence to support the juvenile
court’s conclusion that “the condition of the home remains variable and
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without intervention of services, the home is likely to return to the previous
deplorable state.” Appealed Order at 5.8
[18] The juvenile court also concluded Guardians “are overwhelmed and not
situated and equipped to provide these [C]hildren with their educational
needs.” Id. Jeremy Lewis, the Children’s therapist, testified that the Children
“[a]bsolutely” have special needs. Tr. Vol. 1 at 176. When he first began
working with them, they were “some of the most impulsive children [he had]
ever experienced . . . . Highly oppositional and defiant, reactive[.]” Id. at 175-
76. He opined that this behavior “would overwhelm most caregivers.” Id. at
176. Although Guardians are open to obtaining resources, Lewis explained
“the difficulty has been obtaining the right resources for [the Children] given
their very specific needs.” Id. at 179 (emphasis added).
[19] When DCS investigator Murriel first visited the family, S.P. indicated she was
homeschooling the Children but was unable to provide any documentation or
information on the homeschooling. S.P. testified,
I didn’t have a per say [sic] curriculum. I just used where the
[Children were] and where their learning disabilities were and
where they would be able to understand what they needed.
According to the books that I’ve read and also the teaching
manuals that I have gotten from British Columbia, Florida and
8
Although Guardians point to the testimony of home-based caseworker, Nicoma Cook, that the home was
safe and appropriate and she did not have any concerns about its condition, we must view the evidence most
favorably to the juvenile court’s decision. See In re S.D., 2 N.E.3d at 1287.
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our own Health and Human Services, I also have a booklet from
them.
Id. at 231. FCM Vanstrom requested proof that the Children were receiving
education to find out whether there was any type of curriculum being followed,
a daily planner, or a consistent schedule, but she never got it. Instead, the only
documentation she received was from Growing Minds “of what the [Children]
were currently working [on] and initial assessments[.]” Id. at 146.
[20] We acknowledge that Guardians have spent a lot of time researching the
Children’s conditions and ways to address their special needs, and have sought
out numerous educational, medical, and behavioral services. Nonetheless,
there is ample evidence in the record to support the juvenile court’s conclusion
that Guardians are unable to meet the Children’s educational needs without the
coercive intervention of the court. As our supreme court has explained,
[w]hile we acknowledge a certain implication of parental fault in
many CHINS adjudications, the truth of the matter is that a
CHINS adjudication is simply that – a determination that a child
is in need of services. Standing alone, a CHINS adjudication
does not establish culpability on the part of a particular
parent. . . . In fact, a CHINS intervention in no way challenges
the general competency of a parent to continue a relationship
with the child.
In re N.E., 919 N.E.2d at 105.
[21] In sum, we conclude there is sufficient evidence in the record to support the
juvenile court’s conclusion that the Children are CHINS.
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Conclusion
[22] For the reasons set forth above, we conclude the juvenile court’s determination
that the Children were CHINS was not clearly erroneous. Accordingly, the
judgment of the juvenile court is affirmed.
[23] Affirmed.
Mathias, J., and Pyle, J., concur.
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