In the Matter of L.W. and J.W., Children in Need of Services, and J.W. (Father) and L.W. (Mother) v. Indiana Department of Child Services ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Mar 10 2014, 10:28 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT J.W.: ATTORNEYS FOR APPELLEE:
AMY KAROZOS GREGORY F. ZOELLER
Greenwood, Indiana Attorney General of Indiana
ATTORNEY FOR APPELLANT L.W.: ROBERT J. HENKE
DAVID E. COREY
DANIELLE L. GREGORY Deputy Attorneys General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF L.W. and J.W., )
Children in Need of Services, and )
)
J.W. (Father) and L.W. (Mother), )
)
Appellants-Respondents, )
)
vs. ) No. 49A02-1308-JC-700
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Rosanne Ang, Magistrate
Cause Nos. 49D09-1305-JC-16139 and 49D09-1305-JC-16140
March 10, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
J.W. (“Father”) and L.W. (“Mother”) appeal the trial court’s adjudication of their
minor children, L.W. and J.W., as children in need of services (“CHINS”). The dispositive
issue for our review is whether the evidence supports the trial court’s determination that the
children were CHINS pursuant to Indiana Code Section 31-34-1-1. Concluding that the
evidence does not support the trial court’s determination, we reverse the CHINS
adjudication.
Facts and Procedural History
Father and Mother have been married for sixteen years and have two children, L.W.,
born in March 1998, and J.W., born in April 2000. Father was diagnosed with bipolar
disorder in 1998. In 2000, when L.W. was two years old and J.W. was nine months old,
Father swallowed sixty prescribed Zoloft pills in an attempt to gain attention from doctors
because he believed that he was not “being heard.” Tr. at 8. He believed that ingesting the
large amount of Zoloft would not kill him but would just make him sick. In 2001, while the
family resided in Michigan, Father was determined to be permanently disabled due to his
bipolar disorder and began receiving social security disability payments. Father was on
Medicaid, which covered his psychiatric treatment and his medication. That coverage,
however, transitioned to Medicare after two years, which resulted in Father needing to rely
on Mother’s health insurance from her employment.
The family moved from Michigan to Indiana in 2012 because Mother began working
at IUPUI. Upon arrival in Indianapolis in September, Father immediately sought mental-
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health treatment. Mother’s new health insurance required that he receive a mental-health
referral from a primary-care physician. After receiving a referral, Father obtained the first
available psychiatric appointment at the Neuroscience Center in December 2012. During that
appointment, Father was prescribed a two-month supply of Zoloft.
Father took his medication as prescribed. However, in February 2013, Father had
back surgery and was immobile for four weeks. During that time, his Zoloft prescription ran
out. Because he had problems getting the Neuroscience Center to follow up with him to get
a new prescription, Father went to see his primary-care physician in order to get a new
psychiatric referral. Father got a new referral and scheduled a psychiatric appointment for
July 2013, the first available appointment. In the meantime, Father continued to receive
treatment from his primary-care physician, but that physician did not feel comfortable
prescribing psychiatric medication.
Fourteen-year-old, L.W., who was also diagnosed with bipolar disorder, had been
receiving mental health treatment in Michigan since the fourth grade. While residing in
Michigan, L.W. had been prescribed medication, but he took the medication for only one
month and then refused to continue. Upon arriving in Indianapolis, Father and Mother
arranged for L.W. to receive treatment and therapy with child psychologist Ann Lagges at
Riley Hospital Child and Adolescent Psychiatry Clinic. Because L.W. still had many of the
same behavior problems that he did in Michigan and because he did not react favorably to the
move to Indianapolis, in addition to seeing Dr. Lagges at Riley, Father and Mother had L.W.
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participate in faith-based counseling every Wednesday with the youth pastor at their
Indianapolis church.
Also upon their arrival in Indianapolis, Father and Mother became concerned that J.W.
was depressed and having a hard time coping with the deaths of a relative and a close family
friend. Accordingly, Father and Mother arranged for J.W. to also receive treatment and
therapy from Dr. Lagges at Riley.
On May 18, 2013, Mother and L.W. got into a disagreement because L.W. was being
disruptive. Father confronted L.W. about his behavior, and L.W. left the home. Mother was
upset and blamed Father that L.W. had left. Father then grabbed a bottle of old prescription
medicine and headed to the bathroom. Mother thought that Father was going to take the pills
so she yelled for J.W., who was in another room, to call 911. Father stated that he was just
going to flush the pills down the toilet and voluntarily gave the bottle of pills to Mother
before police arrived. Police and medical personnel arrived on the scene. Although Father
denied trying to kill himself and signed a waiver stating that he did not wish to go to the
hospital, Father was detained and forced to go to Community East Hospital. At the same
time, Mother was arrested for assaulting a police officer who responded to the home and was
taken to the Marion County Jail. Father was released from the hospital later that day.
Mother was released from the Marion County Jail sometime prior to June 3, 2013.1
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The date of Mother’s actual release is unknown. However, the record indicates that Mother was
served with a hearing notice at the family home on June 3, 2013.
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Because both parents had been taken from the home and were unavailable to care for
L.W. and J.W., the Marion County Department of Child Services (“DCS”) took the children
into custody and recommended that the children be removed from the home. The children
were placed in the care of a relative. On May 20, 2013, DCS filed a verified petition alleging
that L.W. and J.W. were CHINS. The petition alleged that Father has bipolar disorder, which
is currently untreated, and that Father had attempted suicide in J.W.’s presence. The petition
further alleged that L.W. has bipolar disorder, which is also currently untreated, and that
court intervention was required for L.W. and J.W. to receive therapy and services that they
could not or would not receive without court intervention. The trial court found that L.W.
and J.W. should remain in relative care and scheduled a factfinding hearing for June 28,
2013. Prior to the factfinding hearing, the trial court granted DCS’s motion for authorization
for continued placement in foster care for L.W. after the relative caregiver requested the
removal of L.W. from the home due to threats L.W. made to the caregiver’s wife.
At the factfinding hearing, Father and Mother both appeared by counsel. Father
testified regarding his mental health treatment in Michigan and his treatment since the move
to Indianapolis. He stated that he received psychiatric treatment in Michigan and that he
sought and received treatment and medication after the move. Father testified that he had
been medicated for his bipolar disorder from December 2012 until February 2013. Father
explained his efforts and frustrations in obtaining mental health treatment from his original
provider and testified that he had scheduled the first available appointment with a new
psychiatrist for July 11, 2013.
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The family’s original DCS case manager, Dwayne Lockridge, testified that he met
with Father at Community East Hospital after the incident on May 18, 2013. Lockridge
testified that Father denied trying to kill himself. Lockridge stated that Father admitted that
he is often depressed due to his bipolar disorder but that, although he had been on medication
in the past, he was experiencing difficulty getting his psychiatrist to follow up with him, so
he was not medicated at the time of the incident. Lockridge stated that he was unaware of
whether Father had taken any steps to obtain future mental-health treatment.
The family’s current DCS case manager, Melody Burnett, testified that when she
spoke with Father, he denied trying to kill himself and that Father stated that he was “actually
just showing J.W. if he was going to commit suicide this is what he would do.” Id. at 70.
Burnett admitted that she had no knowledge of Father’s mental-health treatment, past or
present. Burnett stated that it was unnecessary for DCS to provide therapy or services to
L.W. or J.W. because the children were already receiving the therapy that Father and Mother
had arranged prior to DCS’s involvement. Regarding the children’s mental-health treatment,
Burnett agreed that “literally nothing has changed since DCS took these children from
[Father and Mother].” Id. at 81. Nevertheless, she believed that DCS’s involvement was
necessary “for mental health concerns” for everyone in the family “besides the mother.” Id.
at 72.
At the conclusion of the hearing, the trial court determined that both L.W. and J.W.
were CHINS. Thereafter, on July 22, 2013, the trial court entered its order with findings of
fact and conclusions thereon. A dispositional hearing was held on July 23, 2013. The court
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ordered that L.W. remain in foster care and J.W. remain in relative care. Father and Mother
each appealed.
Discussion and Decision
Father and Mother contend that the trial court’s adjudication of the children as CHINS
is clearly erroneous. Indiana courts recognize that parents have a fundamental right to raise
their children without undue influence from the State, but that right is limited by the State’s
compelling interest in protecting the welfare of children. In re Ju.L., 952 N.E.2d 771, 776
(Ind. Ct. App. 2011). A CHINS proceeding is a civil action in which the State bears the
burden of proving by a preponderance of the evidence that a child meets the statutory
definition of a CHINS. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010); Ind. Code § 31-34-12-3.
To meet its burden of establishing CHINS status, DCS must prove that the child is under age
eighteen and that
(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.
Our supreme court recently noted that the fact that a child’s needs are unlikely to be
met without coercive intervention is perhaps the most critical of the considerations when
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determining whether the State’s intrusion into the ordinarily private sphere of the family is
warranted. In re S.D., No. 49S05-1309-JC-585, 2014 WL 553475, at *3 (Ind. Feb. 12,
2014). Indeed, “[t]hat final element guards against unwarranted State interference in family
life, reserving that intrusion for families ‘where parents lack the ability to provide for their
children,’ not merely where they ‘encounter difficulty in meeting a child’s needs.” Id.(quoting Lake Cnty. Div. of Family & Children Servs. v. Charlton, 631 N.E.2d 526, 528 (Ind.
Ct. App. 1994)). The S.D. court explained eloquently,
[CHINS] cases aim to help families in crisis—to protect children, not punish
parents. Our focus, then, is on the best interests of the child and whether the
child needs help that the parent will not be willing or able to provide—not
whether the parent is somehow “guilty” or “deserves” a CHINS adjudication.
But that help comes not by invitation, but compulsion—imposing the court’s
“coercive intervention” into family life. And a CHINS adjudication may have
long-lasting collateral consequences for the family. The intrusion of a CHINS
judgment, then, must be reserved for families who cannot meet those needs
without coercion—not those who merely have difficulty doing so.
Id. at *1.
When reviewing the sufficiency of the evidence to support a CHINS adjudication, we
will not reweigh the evidence or judge witness credibility and will consider only the evidence
favorable to the judgment and the reasonable inferences raised by that evidence. In re M.W.,
869 N.E.2d 1267, 1270 (Ind. Ct. App. 2007). When the trial court enters findings of fact and
conclusions thereon as the court did here, we consider whether the evidence supports the
findings and whether the findings support the judgment. Parmeter v. Cass Cnty. DCS, 878
N.E.2d 444, 450 (Ind. Ct. App. 2007). We will not set aside the findings or judgment unless
they are clearly erroneous. Id
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Although both Father and Mother direct us to individual findings which they believe
are unsupported by the evidence, we will concentrate our review on the findings and
judgment as a whole. Our review reveals that the crux of this CHINS adjudication revolves
around Father’s alleged failure to obtain sufficient mental-health treatment and the possible
future negative effect that the lack of treatment may have on L.W. and J.W. Specifically, the
trial court concluded that “[t]he failure of [Father] to receive the necessary mental health
treatment resulted in an incident wherein at least one of the children was under the belief that
he had attempted suicide.” Appellant’s App. at 80. Moreover, the court determined that
“[w]ith no indication that mental health treatment has been received to prevent future similar
incidents, [L.W. and J.W.] need care, treatment, or rehabilitation that [they are] not receiving
and is unlikely to be provided or accepted without the coercive intervention of the court.” Id.However, even when the evidence is viewed most favorably to the trial court’s
judgment, we can only conclude that Father and Mother have experienced some difficulty in
obtaining and maintaining appropriate mental-health treatment for Father—not that they are
unlikely to obtain it without the court’s compulsion. Indeed, the record indicates that Father
and Mother have been reasonably diligent in addressing Father’s mental-health issues, and
have done so without the State’s coercion. Prior to DCS’s involvement with this family,
Father was proactive about seeking mental-health treatment and obtaining medication for his
bipolar disorder. Indeed, while it appears that Father has had difficulty in maintaining
consistency with that treatment due to various factors, including a change in doctor and
appointment availability, Father continued to be treated by his primary care physician. And,
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at the time of the factfinding hearing, Father had already scheduled a psychiatric appointment
to obtain additional medication. Regarding the children’s mental health, the record is clear
that, prior to DCS’s involvement, Father and Mother had sought and obtained mental-health
treatment and therapy for both L.W. and J.W. and that both children continue to receive that
treatment.
Undoubtedly, the record reveals that Father and Mother each made poor decisions on
May 18, 2013, which resulted in both parents being temporarily unavailable to care for their
children, prompting DCS to file its petition. However, “[a] CHINS finding should consider
the family’s condition not just when the case was filed, but also when it is heard.” S.D.,
2014 WL 553475, at *6. By the time of the factfinding hearing, we cannot say that the
evidence demonstrated that Father and Mother were in need of the court’s coercive
intervention to appropriately provide for L.W. and J.W. Father already had an appointment
scheduled and was actively pursuing mental-health treatment for himself, and both children
were continuing to receive mental-health treatment and therapy that the parents had in place
well before DCS’s involvement with the family. Father and Mother appear to be making
reasonable efforts to provide for the mental health of all involved. This is something for
which we should applaud them rather than condemn them through coercive action. See In re
R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013). Simply put, DCS failed to meet its burden of
demonstrating that coercive intervention of the court was necessary. The trial court’s
conclusion to the contrary is clearly erroneous. When coercion is not necessary, the State
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may not intrude into a family’s life. S.D., 2014 WL 333475, *7. We therefore reverse the
trial court’s judgment that L.W. and J.W. were CHINS.
Reversed.
BAKER, J., and NAJAM, J., concur.
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