In the Matter of: M.M. (Minor Child), Child in Need of Services, M.M. (Mother) 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 Nov 21 2019, 8:56 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Steven J. Halbert Attorney General of Indiana
Indianapolis, Indiana Katherine A. Cornelius
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
Dede K. Connor
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: November 21, 2019
M.M. (Minor Child) Court of Appeals Case No.
19A-JC-1308
Child in Need of Services
Appeal from the Marion Superior
M.M. (Mother), Court
Appellant-Respondent, The Honorable Mark Jones, Judge
The Honorable Rosanne Ang,
v. Magistrate
Trial Court Cause No.
The Indiana Department of 49D15-1812-JC-2995
Child Services,
Appellee-Petitioner,
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And
Child Advocates, Inc.,
Appellee-Guardian ad Litem.
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, M.M. (Mother), appeals the trial court’s adjudication
that her minor child, Mi.M. (Child), is a Child in Need of Services (CHINS).
[2] We affirm.
ISSUES
[3] Mother presents two issues on appeal, which we consolidate and restate as the
following single issue: Whether the trial court erred in determining Child to be
a CHINS.
FACTS AND PROCEDURAL HISTORY
[4] Mother is mother to Mi.M, born on March 22, 2006. On December 4, 2018,
the Department of Child Services’ (DCS) Family Case Manager (FCM) Monay
Cavazos (FCM Cavazos) assessed an allegation of neglect. The report received
by DCS alleged that Mother believed someone was going to kill her and Child,
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that Mother is mentally ill, and that Child had missed thirteen days of school.
When FCM Cavazos arrived at the residence, the police were already present
and in the process of removing a gun from the home. The officers detained
Mother for a mental health assessment and DCS detained the Child.
[5] Within two hours of receiving the report, FCM Cavazos interviewed Mother.
Mother confirmed the allegations of the initial report by reiterating her belief
that hitmen were going to kill her and Child. Mother explained that she has
received private calls for the past two weeks from someone whose number and
voice she did not recognize. Later in the conversation, Mother claimed the
unknown caller to be her own mother. She suspected that her mother wanted
to kill her and Child because Mother was about to receive $750,000 as a
settlement in a medical malpractice suit over the death of one of her children in
2009. Upon investigation, DCS discovered that the court had granted summary
judgment in favor of the medical respondents in the lawsuit. Mother informed
FCM Cavazos that she was diagnosed with PTSD, anxiety, and Lupus, and
was prescribed Xanax, Viibryd, and morphine. When FCM Cavazos inquired
about the change of locks that she had observed as she arrived at Mother’s
residence, Mother explained that this was due to a recent attempted burglary of
her home.
[6] Although Mother’s gun was confiscated by the police on December 4, 2018,
Mother obtained another gun by February 2019. On February 22, 2019, she
twice shot her neighbor because she was upset with him as he had been making
too much noise the night before. On February 25, 2019, the State filed an
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Information, charging Mother with aggravated battery, a Level 3 felony, and
carrying a handgun without a license, a Class A misdemeanor. Mother
requested, and the criminal court ordered, an evaluation to determine Mother’s
sanity and competency to stand trial. At the time of the CHINS factfinding
hearing, Mother was on pretrial release and electronic monitoring.
[7] Sarah Krogulecki (Krogulecki), a home-based therapist, began counseling with
Mother in January 2019. During the initial meetings, Mother was pleasant and
cooperative. She was talkative and appropriately dressed in “business casual”
clothing. (Transcript p. 42). However, on February 21, 2019, during the Child
and Family Team Meeting, Krogulecki noted a “market [sic] change in only
three days.” (Tr. p. 41). Mother was dressed differently, seemed “very tired,”
had difficulties holding a conversation, was stumbling over her words, and
seemed to “fall asleep while we were talking.” (Tr. p. 42). Krogulecki
explained that “[b]ased on [her] training and education, a market [sic] change
in affect is sometimes known as a sign of mental health concerns that are
present.” (Tr. p. 43). She was unsure whether she was qualified to properly
identify all of Mother’s needs because she was “someone not trained
specifically to work with serious mental health concerns.” (Tr. p. 41).
Krogulecki recommended further evaluations to better identify possible future
concerns and noted that she never observed Mother resistant or otherwise
unwilling to participate in a psychological evaluation. Because Krogulecki
became concerned for her own safety after Mother’s change in behavior, the
counseling sessions were stopped.
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[8] FCM Timothy Graybeal (FCM Graybeal) began working with Mother in
January of 2019. He was convinced Mother needed home-based therapy to
address the deaths of three of her children, as well as the placement of the Child
out of her care. He recommended that Mother complete a psychological
assessment based on his interactions with Mother, Krogulecki’s
recommendation, and Mother’s belief that FCM Graybeal was working for the
Federal Bureau of Investigation. Although FCM Graybeal made three referrals
for a psychological assessment, none of them were even commenced before the
CHINS factfinding hearing.
[9] On March 14, 2019, the trial court conducted a factfinding hearing on DCS’s
CHINS petition. During the hearing, Mother testified that she did not
remember being told to complete a psychological assessment by DCS or the
court. She also claimed to have requested a psychological assessment from
FCM Graybeal more than twenty times. Although she denied having a mental
health diagnosis, she admitted to being depressed and had previously been
diagnosed with temporary PTSD. She explained that she had psychological
assessments done after the death of each of her three older children. While
none of these assessments recommended any treatment, she added that a
psychiatrist had prescribed Viibryd to address anxiety attacks and Xanax to
help her sleep. She also admitted to taking morphine as a painkiller. On the
same day but after receipt of evidence for the factfinding hearing, a colloquy
about whether Mother could live with the relative caregiver for Child revealed
that Mother had not been visiting with Child or participating in services.
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[10] On April 25, 2019, the trial court adjudicated Child to be a CHINS, concluding,
in pertinent part, that
[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. [Mother] has severe mental health
needs which have led the DCS and therapist to believe that she
suffers from delusions. In December of 2018, [Mother] was in
possession of a firearm when she was placed under an immediate
detention by law enforcement officers. Additionally, [Mother]
has a pending trial on charges involving violence and a firearm
which are alleged to have occurred in February of 2019. For her
and [Child’s] safety, [Mother’s] untreated mental health
condition needs to be addressed.
[Child] needs care, treatment, or rehabilitation that the [C]hild is
not receiving, and is unlikely to be provided or accepted without
the coercive intervention of the [c]ourt. As [Mother] has
declined to engage in the psychological evaluation offered by the
DCS, the coercive intervention of the [c]ourt is necessary to
compel [Mother] to engage in the needed treatment.
(Appellant’s App. Vol. II, p. 112). On May 16, 2019, the trial court entered its
CHINS disposition and parental participation order, ordering Mother to engage
in and participate in a plan of services and programs to facilitate her
reunification with the Child.
[11] Mother now appeals. Additional information will be added if necessary.
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DISCUSSION AND DECISION
[12] Mother contends that DCS failed to present sufficient evidence to demonstrate
that Child is a CHINS. When reviewing a trial court’s CHINS determination,
we do not reweigh evidence or judge witness credibility. In re S.D., 2 N.E.3d
1283, 1286 (Ind. 2014). Instead, we consider only the evidence that supports
the trial court’s decision and the reasonable inferences drawn therefrom. Id.When a trial court supplements a CHINS judgment with findings of fact and
conclusions of law, we apply a two-tiered standard of review: we consider,
first, whether the evidence supports the findings, and second, whether the
findings support the judgment. In re D.J., 68 N.E.3d 574, 577-78 (Ind. 2017).
We will reverse a CHINS determination only of it was clearly erroneous. Id. A
decision is clearly erroneous if the facts do not support the findings or if it
applies the wrong legal standard to properly found facts. Id.[13] Here, Mother contends that the trial court erred in adjudicating Child to be a
CHINS because there was no evidence that Child was seriously endangered by
her “alleged status as a parent with mental health issues” and no evidence was
presented that coercion was necessary to force Mother to obtain a psychiatric
evaluation or mental health services. (Appellant’s Br. p. 6).
[14] The purpose of a CHINS inquiry is to determine whether a child’s
circumstances require services that are unlikely to be provided without the
intervention of the court, and thus, the focus of a CHINS adjudication is on the
condition of the child alone, not on the culpability of one or both parents. In re
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N.C., 72 N.E.3d 519, 524 (Ind. Ct. App. 2017). Nonetheless, “[n]ot every
endangered child is a child in needs of services, permitting the State’s parens
patriae intrusion into the ordinary private sphere of the family.” In re S.D., 2
N.E.3d at 1287. Rather, a CHINS adjudication under Ind. Code § 31-34-1-1requires proof of three basic elements: the parent’s actions or inactions have
seriously endangered the child; the child’s needs are unmet; and “perhaps most
critically,” those needs are unlikely to be met unless the State intervenes.” Id.It is the last element that guards against unwarranted State interference in the
family life. In re N.C., 72 N.E.3d at 524. State intrusion is warranted only
when parents lack the ability to provide for their children. Id. Moreover, when
determining whether a child is a CHINS under I.C. § 31-34-1-1, and
particularly when determining whether the coercive intervention of the court is
necessary, the trial court “should consider the family’s condition not just when
the case was filed, but also when it is heard.” In re S.D., 2 N.E.3d at 1290.
I. Mental Health
[15] In its adjudication, the trial court concluded that the Child’s physical or mental
condition was seriously imperiled due to Mother’s severe mental health issues.
Mother now maintains that the trial court’s order was based on her “status as
someone with alleged mental health issues,” rather than on a serious threat or
danger to the Child. (Appellant’s Br. p. 9). As such, Mother asserts that DCS
failed to present any evidence that she ever abused, injured, or neglected the
Child. Focusing on facts submitted at the factfinding hearing, Mother contends
that, at the time of the hearing, she was under the care of a psychiatrist, was
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taking her medication, did not believe anyone was trying to kill her, and did not
possess a weapon.
[16] Indiana has, historically, considered a parent’s mental illness as an important
factor in deciding whether that parent can meet the needs of their child, even
while it consistently has held that mental illness, standing alone, is not a proper
ground for termination. See Egly v. Blackford Co. DPW, 592 N.E.2d 1232 (Ind.
1992). This includes examining the parent’s habits and patterns of conduct in
addressing mental health problems and providing a safe, consistent, and
nurturing residence and environment. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct.
App. 2004). In the Matter of K.P.G., 99 N.E.3d 677, 683 (Ind. Ct. App 2018),
this court discussed the endangerment of a child by a parent’s lack of treatment
or insight about her mental illness. In K.P.G., the child had a serious heart
condition, Mother admitted she had an untreated mental illness, and the child
displayed labored breathing. Id. at 684. The court noted that mother’s
untreated mental illness “left her unable to make critical decisions regarding
[the child’s] care and treatment.” Id.
[17] In support of her argument, Mother points to E.Y. v. Ind. Dept. of Child Servs., 93
N.E.3d 1141 (Ind. Ct. App. 2018) as an illustration of the appropriate analysis a
court should undertake when a parent is alleged to have a mental illness. In
E.Y., evidence was presented that mother heard the voice of her former
employer coming through the television set and a caseworker testified that
Mother appeared to suffer from schizophrenia. Id. at 1146. We noted that
DCS did not provide evidence Mother was ever diagnosed with or treated for a
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mental illness and DCS did not refer Mother for a psychiatric evaluation. Id.
Moreover, “DCS presented no evidence relevant to the impact, if any, of
[m]other’s mental illness on [c]hild’s condition.” Id. To the contrary, we noted
that evidence was presented that Mother was meeting the child’s needs. Id.
Concluding that “DCS did not present evidence to support a reasonable
inference that [m]other’s mental illness impaired her ability to provide for
[c]hild or that [c]hild was harmed as a result of [m]other’s mental illness,” we
reversed the CHINS adjudication. Id. at 1148.
[18] We do not find E.Y. to be dispositive to the case at hand. “When determining
CHINS status under Section 31-34-1-1, [], courts should consider the family’s
condition not just when the case was filed, but also when it is heard.” In re D.J.,
68 N.E.3d 574, 580-81 (Ind. 2017). At DCS’s initial involvement, Mother
expressed her belief to FCM Cavazos that hitmen were going to kill her and the
Child. She admitted to having been diagnosed with PTSD, anxiety, sleep
disturbances, and Lupus. Testimony at the factfinding hearing disclosed that
even though therapeutic meetings showed a promising start, Krogulecki
“observed a significant shift in [Mother’s] affect,” resulting in a concern “that
[Mother] is suffering from untreated psychosis which could cause her to have
difficulty discerning what is real and what is not real.” (Tr. p. 41). Although
Mother’s gun was confiscated by the police, she later obtained another gun,
which she used to twice shoot her neighbor because she was upset with him as
he had been making too much noise the night before. See In re J.C., 994 N.E.2d
278, 283 (Ind. Ct. App. 2013) (A trial court may properly consider recent arrests
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of a parent, especially when such pending criminal charges might subject the
parent to “possible executed time which would necessarily interrupt
reunification services” or have an impact on the “parent’s ability to provide a
safe and suitable home.”), reh’g denied. Furthermore, Child had missed at least
thirteen school days because Mother was convinced that a staff person at school
was poisoning him. Accordingly, unlike in E.Y., evidence was presented that
Mother’s actions, based on her delusions, endangered and negatively impacted
the Child.
[19] Mother’s untreated mental health concerns, her belief someone is out to kill her
and the Child, coupled with her access to weapons and recent violent episode
which resulted in aggravated battery charges, seriously endangered Child to the
point his safety was being questioned and his educational needs were being
neglected. 1
II. Coercive Intervention
[20] Mother also claims that the trial court’s coercive intervention is unnecessary as
Mother’s testimony reflects a willingness to submit to a psychiatric evaluation.
When determining whether coercive intervention is necessary, “the question is
whether the parents must be coerced into providing or accepting necessary
1
Mother also claims that she is protected under the American with Disabilities Act (ADA) as “DCS labelled
Mother as severely mentally disabled” on insufficient evidence. (Appellant’s Br. p. 11). Mother’s protected
status under the ADA as a disabled person is immaterial for the application of the CHINS statute as this
statute focuses on the needs and safety of the Child, not on the status of the parent. See I.C. § 31-34-1-1.
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treatment for their child.” Matter of E.K., 83 N.E.3d 1256, 1262 (Ind. Ct. App.
2017).
[21] At the factfinding hearing, Mother denied having a mental health diagnosis.
She later testified that she was depressed and previously had been diagnosed
with a form of PTSD. She noted that she had mental health assessments after
the deaths of her three older children and that none of these assessments
recommended further treatment. However, on the other hand, Mother also
testified that she saw a psychiatrist who prescribed her anti-depressants to
address anxiety attacks and to help her sleep. Although Mother told FCM
Graybeal that she was willing to take a psychological evaluation, she informed
the provider who contacted her to schedule the assessment that she no longer
needed one.
[22] Mother’s evasiveness about whether she has a mental illness, combined with
her failure to complete an assessment—or any other DCS required services—
before the factfinding hearing, is sufficient for the trial court to find by a
preponderance of the evidence that its intervention is necessary to ensure the
Child’s safety and wellbeing. 2
2
Mother also claims that the involuntary commitment statutes address “the issues of mentally ill parents who
are a danger to their children.” (Appellant’s Br. p. 14). However, the involuntary commitment statutes do
not exclude the need for DCS to intervene on behalf of the child. Whereas the involuntary commitment
statute focuses on protecting the public and ensuring the rights of the person whose liberty is at stake, the
CHINS proceedings focus on the needs of the child and operate with the goal of giving family members the
tools to learn how to provide and maintain a safe and suitable home environment for the child. See Civil
Commitment of T.K. v. Dept. of Veteran Affairs, 27 N.E.3d 271, 273 (Ind. 2015); In re N.E., 919 N.E.2d 102, 106
(Ind. 2010).
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CONCLUSION
[23] Based on the foregoing, we conclude that the trial court did not err when it
adjudicated Child to be a CHINS.
[24] Affirmed.
[25] Vaidik, C. J. and Bradford, J. concur
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