In the Matter of: A.C. (Child Alleged to be in Need of Services) and K.R. (Mother) K.R. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 05 2016, 6:55 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paula M. Sauer Gregory F. Zoeller
Danville, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: August 5, 2016
A.C. (Child Alleged to be in Court of Appeals Case No.
Need of Services) and K.R. 32A04-1601-JC-123
(Mother); Appeal from the Hendricks
Superior Court
K.R. (Mother), The Honorable Karen M. Love,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 32D03-1506-JC-57
The Indiana Department of
Child Services,
Appellee-Petitioner.
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May, Judge.
[1] K.R. (Mother) appeals A.C.’s (Child’s) adjudication as a Child in Need of
Services (CHINS). She argues the Department of Child Services (DCS) did not
present sufficient evidence to permit the adjudication. We affirm.
Facts and Procedural History
[2] Child was born on January 16, 2015, to Mother and H.C. (Father) 1 (collectively
Parents), who are not married. On June 22, 2015, DCS responded to a report
Mother walked with Child to a local gas station “in 90˚ heat,” (App. at 36),
after arguing with Father and Paternal Grandmother and indicated she had no
place to go. DCS helped Mother and Child find alternate housing in a shelter
that day, and Mother and Child resided there during the proceedings.
[3] On June 25, 2015, DCS filed a petition alleging Child was a CHINS due to
Parents’ inability to provide for Child’s basic needs. On August 12 and
September 16, the juvenile court held fact-finding hearings on the CHINS
petition. On November 3, 2015, the juvenile court adjudicated Child as a
CHINS. On December 2, 2015, the juvenile court held a dispositional hearing
and entered a dispositional order requiring Parents to participate in services and
granting wardship of Child to DCS.
1
Father does not appeal the CHINS adjudication.
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Discussion and Decision
[4] A CHINS proceeding is civil in nature, so DCS 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). Ind. Code § 31-34-1-1 states:
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:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
A CHINS adjudication “focuses on the condition of the child,” and not the
culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding
a child to be a CHINS is to provide proper services for the benefit of the child,
not to punish the parent. Id. at 106.
[5] When a juvenile court enters findings of fact and conclusions of law in a
CHINS decision, we apply a two-tiered review. Parmeter v. Cass Cnty. DCS, 878
N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first consider whether
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the evidence supports the findings and then whether the findings support the
judgment. Id. We may not set aside the findings or judgment unless they are
clearly erroneous. Id. Findings are clearly erroneous when the record contains
no facts to support them either directly or by inference, and a judgment is
clearly erroneous if it relies on an incorrect legal standard. Id. We give due
regard to the juvenile court’s ability to assess witness credibility and we do not
reweigh the evidence; we instead consider the evidence most favorable to the
judgment with all reasonable inferences drawn in favor of the judgment. Id. We
defer substantially to findings of fact, but not to conclusions of law. Id.
[6] Mother challenges many of the juvenile court’s findings and argues DCS did
not present sufficient evidence to support those findings. It did.
I. Mother’s Housing Instability
[7] Regarding Mother’s housing situation, Mother argues the evidence does not
support Finding 23 which states:
23. Mother advised [FCM] Ms[.] Ash that her father was on
disability for his mental health issues. As this case has
progressed Mother has never come up with another place to stay
with [Child] other than with her mentally ill father in
Pennsylvania or the shelter arranged by DCS. Ms[.] Ash did a
back ground [sic] check on [Child’s] maternal grandfather and
did not believe living with him would be appropriate for [Child].
(App. at 37.) Based thereon, the juvenile court concluded Mother “did not
have the ability to provide [Child] with the necessary . . . shelter.” (Id. at 39.)
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[8] Mother claims she was “weighing various options, such as moving into
independent housing with Father or moving to Pennsylvania where her family
resided.” (Br. of Appellant at 8.) She asserts her inability to secure housing
does not, in itself, support the juvenile court’s conclusion Child is a CHINS. In
support of her argument, Mother cites In re S.M., 45 N.E.3d 1252, 1256 (Ind.
Ct. App. 2015), where we said, “[e]ven the mere fact of a family living in a
shelter while seeking stable housing does not make a CHINS.” However, the
facts in In re S.M. are different from those in this case, as the children in In re
S.M. “have always had a home[.]” Id. at 1254. Here, not only does Mother not
have stable housing, there are other factors that support Child’s adjudication as
a CHINS, as will be discussed further in this opinion. Mother’s argument is an
invitation for us to reweigh the evidence, which we cannot do. See Parmeter,
878 N.E.2d at 450 (appellate court cannot reweigh evidence or judge the
credibility of witnesses).
II. Mother’s Ability to Care for Child
[9] Mother argues DCS did not present sufficient evidence to support the juvenile
court’s findings regarding Mother’s ability to care for Child. The juvenile court
found:
6. DCS reveived [sic] two reports re: [Child]. On 6/19/15 DCS
received a report alleging the parents were unable to financially
care for [Child], that [Child] had not received all of her well baby
checks and the parents argued a lot.
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7. On 6/22/2015 DCS received a second report that Mother and
[Child] were at a local gas station in 90˚ heat, they had been
kicked out of their home and had no place to go.
*****
9. After [Child’s] birth[,] Father, Mother, and [Child] lived with
[Paternal Grandmother] in her home. [Paternal Grandmother]
works and she financially supported Father, Mother and [Child].
Neither parent worked prior to 6/22/2015.
*****
11. FCM Ash explained why [Mother and Child] were at the gas
station. Mother admitted she and [Child] had been living in
[Paternal Grandmother’s] home with Father, Father’s brother
and step father. Mother admitted that she and [Paternal
Grandmother] argued, shoved each other on 6/22/2015 and
Mother left with [Child] and Mother walked to the gas station
with [Child], Mother admitted she and [Child] had nowhere to
go. Mother had contacted her own father who lives in
Pennsylvania and he could not come and get Mother and
[Child].
12. Father came to the gas station and later [Paternal
Grandmother] came to the gas station. Father admitted that he
and Mother cannot financially take care of [Child] and that he
was too depressed to actually provide hands on care for [Child].
Father and [Paternal Grandmother] were concerned that
[M]other and [Child] were out in the heat.
*****
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16. [Paternal Grandmother] often prompted Mother to make
appointment[s] with [Child’s] doctor for checkups and offered to
take Mother and [Child] to the appointments. Sometimes
Mother followed through and [Paternal Grandmother] drove
Mother and [Child] to her doctor appointments. Prior to DCS
involvement [Child] had not been to all of the normal and
customary “well baby check up[s]” with her doctor.
*****
28. On two separate occasions [Child] had blood on her nose
which was concerning. Mother claimed she had used a QTIP
[sic] to clean [Child’s] nose. Mother’s explanation does not
make sense. It is not safe to clean an infant’s nose with a QTIP
[sic] to the point the infant’s nose bleeds.
On another occasion [Child] had a severe diaper rash with
redness and sores, and Father was very upset when [he] observed
[Child’s] condition during his parenting time. Father called
Mother and Mother said she didn’t have any wipes. Father
wanted to take [Child] to the emergency room. Ms[.] Joyti [the
home based case manager who supervised Father’s visitation]
encouraged Father to call [Child’s] doctor. Father called FCM
Ash and told her about [Child’s] rash. [Child] was taken to the
doctor [and] it [was] determined the rash was caused because
[Child] was left in a saturated diaper for extended periods of
time. Doctor recommended diaper be changed more frequently,
use a diaper crème [sic] and changes to the baby’s diet ie: [sic] no
cow[’]s milk. Mother had been giving the baby 2% cow’s milk
instead of formula.
29. FCM Ash has had multiple discussions with Mother about
the proper care of [Child’s] formula. On 6/22/2015, 6/23/2015,
6/24/2015, 6/30/15 and 7/1/2016 Ms[.] Ash has had to remind
Mother that she must refrigerate [Child’s] bottles if she makes
formual [sic] ahead. Mother insists on making formula in the
morning and feeding [Child] that bottle throughout the day and
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leaving the bottle out in the heat. FCM Pitzer has also observed
this problem and discussed the issue with Mother.
*****
31. FCN [sic] Pitzer has received several emails from Father
upset about Mother’s lack of care for [Child]. The week prior to
the fact finding hearing [Child] fell off the bed twice while in
Mother’s care. On 9/5/2015 FCM observed the child and did
not see any marks or bruises. Mother told FCM Pitzer that
[Child] fell into a pile of clothes on the floor. When Ms[.] Ptizer
saw the condition of the room she was concerned [Child] could
suffocate when she fell especially given Mother’s admission that
she was arguing with her roommate when [Child] fell.
32. FCM Pitzer has observed [Child] with diapers so full that
feces were on the child’s clothes. When Ms[.] Pitzer prompted
Mother to change the diaper Mother merely said she had no
wipes. FMC Pitzer explained to Mother that she could use a
clean wash cloth to clean [Child]. FCM Pitzer has observed
redness and sores on [Child] due to her Mother’s lack of proper
hygiene for [Child].
33. DCS has referred Mother for parenting classes and Mother is
participating but her ongoing care of [Child] is not improving.
Mother continues to leave the child in saturated and soiled
diapers for extended periods. [Child] has re occurring [sic] sores
and extreme diaper rash. Without the extensive supervision [of]
FCM Ash and FCM Pitzer the diaper rash could become even
worse leading to infection and could endanger [Child’s] physical
health.
*****
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37. Mother gets into arguments everywhere she goes. Mother
argues with Father, with [Paternal Grandmother], and with her
roommate at the shelter. Mother is focused on arguing with
others[,] not on [Child]. Nothing has been accomplished despite
the referrals for parenting skills for Mother and the intensive
supervision by the family case managers assigned to this child.
Mother has “accepted” parenting skills training but she is merely
going through the motions. The coercive intervention of the
court is necessary for Mother to actively engage in services in
order to meet [Child’s] needs.
(App. at 36-39.)
[10] Regarding these specific findings, DCS presented evidence Child had missed at
least one “well baby” appointment, Mother lived with Paternal Grandmother,
and Mother did not have a source of income. Mother admitted she walked
with Child to a gas station near Paternal Grandmother’s house on a hot day
and indicated to someone therein that she did not have anywhere to go. DCS
presented evidence Child had severe diaper rash on multiple occasions and the
rash was observed by multiple people, the diaper rash required medical
attention, and Mother admitted she did not regularly change Child’s diaper,
which resulted in the severe rash. DCS presented testimony indicating Mother
fed Child cow’s milk against the recommendation of a doctor and would mix
Child’s formula bottles in the morning and, without refrigerating them, feed
them to Child throughout the day. Finally, DCS presented information Mother
was argumentative with multiple people, often to the detriment of Child,
including an incident in which Child fell from a bed into a pile of clothes while
Mother argued with her roommate. Mother’s alternate version of facts and
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excuses for her actions are invitations for us to reweigh the evidence, which we
cannot do.2 See Parmeter, 878 N.E.2d at 450 (appellate court cannot reweigh
evidence or judge the credibility of witnesses). The evidence in the record
supports the court’s findings regarding Mother’s inability to care for Child. 3
Conclusion
[11] DCS presented sufficient evidence to support the juvenile court’s findings and
those findings supported its conclusion Child was a CHINS. Accordingly, we
affirm.
[12] Affirmed.
Kirsch, J., and Crone, J., concur.
2
Mother also contends, because the evidence does not support the findings, the juvenile court erred when it
concluded Child was “seriously impaired or endangered” as a result of Mother’s actions. As we determine
DCS presented sufficient evidence to support the juvenile court’s findings, the trial court did not err when it
concluded Child was a CHINS. See In re A.H., 913 N.E.2d 303, 311 (Ind. Ct. App. 2009) (holding evidence
similar to the case before us, including feeding infant cow’s milk, not changing infant’s diaper regularly, and
not taking infant to the doctor, warranted a CHINS adjudication).
3
Mother also challenges findings regarding Father, who does not participate in this appeal. The parties are
at odds regarding the issue of Mother’s standing to contest findings regarding Father. As we determine DCS
presented sufficient evidence independent of the findings regarding Father, we need not address the issues
surrounding them.
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