In the Matter of I.S. and J.S. (Children Alleged to be in Need of Services) and E.S. (Father) E.S. (Father) v. Indiana Department of Child Services, AND Child Advocates, Inc. (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Sep 10 2020, 9:00 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
Valerie K. Boots Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of I.S. and J.S. September 10, 2020
(Children Alleged to be in Need Court of Appeals Case No.
of Services) and E.S. (Father); 20A-JC-706
E.S. (Father), Appeal from the Marion Superior
Court
Appellant-Respondent,
The Honorable Marilyn A.
v. Moores, Judge
The Honorable Danielle Gaughan,
Indiana Department of Child Magistrate
Services, Trial Court Cause No.
49D09-1909-JC-2336
Appellee-Petitioner
49D09-1909-JC-2337
AND
Child Advocates, Inc.,
Appellee - Guardian ad Litem
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 1 of 14
May, Judge.
[1] E.S. (“Father”) appeals the adjudication of his children, I.S. and J.S.,
(collectively, “Children”), as Children in Need of Services (“CHINS”). He
argues some of the trial court’s findings are not supported by the evidence and
that the remaining findings do not support the juvenile court’s adjudication of
Children as CHINS. We affirm.
Facts and Procedural History
[2] J.T. (“Mother”) and Father are the parents of I.S., born July 20, 2008; and J.S.,
born May 13, 2011. Mother was the custodial parent of Children, and Father
exercised parenting time every other weekend and one evening a week. Father
is married to A.S. (“Stepmother”), who has one daughter (“Stepsister”) who
lives with Father and Stepmother.
[3] On September 3, 2019, the Department of Child Services (“DCS”) received a
report that J.S., then eight years old, had reported that I.S., then eleven years
old, had touched him inappropriately in a sexual manner. DCS conducted an
investigation, including interviews with Children, Mother, and Father, during
which I.S. admitted she touched J.S. inappropriately while at Mother’s home.
On September 5, 2019, DCS removed Children from Mother’s home and
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 2 of 14
placed J.S. with Father. I.S. was placed first with other relatives, and then
ended up in shelter care at Courage Center because no options for relative care
existed at which there were no younger children.
[4] On September 9, 2019, DCS filed a petition alleging Children were CHINS.
The juvenile court held a fact-finding hearing on the CHINS petition on
December 18, 2019. Mother admitted Children were CHINS at that hearing.
The juvenile court took the admission under advisement until the completion of
Father’s fact-finding hearing on December 23, 2019. Father was present at both
fact-finding hearings and stipulated to the Children’s statements during their
interviews, which included J.S.’s allegation of sexual abuse and I.S.’s admission
that she was the perpetrator of that sexual abuse, but Father denied Children
were CHINS. He proposed the custody arrangement be changed so that
Children could live with him, Stepmother, and Stepsister. Father testified he
planned to engage Children with therapists who were covered by his insurance.
[5] However, at the time of Father’s proposal, Children had been active in
individual therapy for approximately two-and-one-half months. I.S. was
working with a Credentialed Sexually Abusive Youth Clinician (“CSAYC”) to
address sexually maladaptive behavior, and J.S. was working with a therapist
who specializes in trauma. Under Father’s plan, the Children would have to
change therapists, which was not recommended by their current therapists
because doing so would slow the progress already made in therapy.
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 3 of 14
[6] Children’s therapists also agreed it would not be in either child’s best interests
for Children to live in the same house. J.S.’s therapist testified that J.S. had not
“made much progress towards reconciling his negative emotions about the
abuse” and “he needs to work through that . . . those anger feelings that he has
before he can go back to living with [I.S.].” (Tr. Vol. II at 79.) I.S.’s therapist
recommended that her “treatment be completed before they’re placed together”
because “[i]f [I.S.] has shown inappropriate behaviors in the past, which she
reportedly has, then it’s . . . based on current research, unlikely that those
behaviors would stop without the treatment having been completed.” (Id. at
70.)
[7] Father testified he had created a safety plan in the event Children were placed
with him. In the plan, J.S. would have his own room, and I.S. would share a
room with Stepsister. Father, who works in the evening, and Stepmother, who
works during the day, would supervise Children by “watching them all day,
every day.” (Id. at 46.) Father asked the juvenile court to not adjudicate
Children as CHINS and grant him primary custody of Children. The juvenile
court took the matter under advisement.
[8] On January 21, 2020, the juvenile court entered its order adjudicating Children
as CHINS. On February 19, 2020, the juvenile court held a dispositional
hearing and the next day entered its dispositional decree. The court ordered
that J.S. remain placed with Father, I.S. remain placed in shelter care at
Courage Center, Children participate in individualized therapy, and Mother
have visitation with Children.
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 4 of 14
Discussion and Decision
[9] Father challenges Children’s adjudications as CHINS. 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). The CHINS petition was filed pursuant to Ind. Code § 31-34-
1-1, which 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.
[10] Under Indiana Code section 31-34-1-2, the State must prove that “the child’s
physical or mental health is seriously endangered due to injury by the act or
omission of the child’s parent, guardian, or custodian.” Under Indiana Code
section 31-34-1-3, the State must prove the child was a victim of a sexual
offense and “needs care, treatment, or rehabilitation that: (A) the child is not
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 5 of 14
receiving; and (B) is unlikely to be provided or accepted without the coercive
intervention of the court.”
[11] A CHINS adjudication focuses on the needs and condition of the child, and not
the culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of a
CHINS adjudication is not to punish the parent, but to provide proper services
for the benefit of the child. Id. at 106. “[T]he acts or omissions of one parent
can cause a condition that creates the need for court intervention.” Id. at 105.
“A CHINS adjudication can also come about through no wrongdoing on the
part of either parent[.]” Id.
While 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.
Only when the State moves to terminate a particular parent’s
rights does an allegation of fault attach. We have previously
made it clear that CHINS proceedings are “distinct from”
involuntary termination proceedings. The termination of the
parent-child relationship is not merely a continuing stage of the
CHINS proceeding. In fact, a CHINS intervention in no way
challenges the general competency of a parent to continue a
relationship with the child.
Id. (citations omitted).
[12] When a juvenile court enters findings of fact and conclusions of law in a
CHINS decision, we apply a two-tiered standard of review. In re Des. B., 2
N.E.3d 828, 836 (Ind. Ct. App. 2014). We first consider whether the evidence
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 6 of 14
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 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. Unchallenged
findings “must be accepted as correct.” Madlem v. Arko, 592 N.E.2d 686, 687
(Ind. 1991).
1. Challenged Findings
Finding 15
[13] Father first challenges Finding 15, which states:
15. Father stated that if the child in needs [sic] of services case
closed and both [Children] were placed in his care, Father would
be able to pay for therapy for [Children] through his insurance.
Father, at the time of trial, had not identified therapists for
[Children] and had no real therapeutic plan for [Children].
(App. Vol. II at 172.) Father argues this finding “mischaracterizes the evidence
presented.” (Br. of Appellant at 19.) Father directs us to his testimony
regarding his plan for therapy for Children should the juvenile court deny
DCS’s petition to declare Children as CHINS and release Children to Father’s
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 7 of 14
custody. Father testified he understood the type of therapy Children needed
and would continue that therapy should they be placed in his care. He
indicated that he might continue therapy with Children’s current therapists and
new therapists through his insurance, but he preferred to use a therapist covered
by his insurance.
[14] While Father had used an online directory to locate appropriate therapists and
contacted Midtown Mental Health, he was unable to begin Children in that
therapy until they were no longer under the DCS therapist’s care or the DCS
therapist transferred Children to a therapist at Midtown Mental Health. Father
contends he had a plan for Children’s therapeutic needs, but DCS’s intervention
prevented him from enacting it.
[15] However, the State also presented evidence that Father’s safety plan did not
have a specific plan for therapy and that Father did not take J.S. to therapy
multiple times because J.S. had violin lessons. Children’s current therapists
testified that continuation of therapy was crucial to reuniting the family and
that changing to a new therapist may result in setbacks in each child’s recovery.
Father’s arguments are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See In re Des. B., 2 N.E.3d at 836
(appellate court does not reweigh evidence or judge the credibility of witnesses
on appeal). The State presented evidence to support the finding that Father did
not have a sufficient plan for Children’s therapeutic needs should they be
released into his care.
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 8 of 14
Findings 12, 18, and 19
[16] Father also challenges Findings 12, 18, and 19 of the juvenile court’s order.
Those findings concern Father’s safety plan and state, in relevant part:
12. Fathers [sic] plan is to have [Children] in his care and to
ensure the [Children’s] safety with line of sight supervision,
twenty-four hours a day, seven days a week.
*****
18. . . . Father maintains the [Children] are not in need of
services if they are placed in his care. Father contends that he
and Step-mother can maintain line of sight supervision at all
times to ensure [J.S.’s] safety. Fathers [sic] plan to have line of
sight supervision at all times of both [Children] is unrealistic and
would be for any parent. Father and Step-mothers [sic] hearing
impairment creates an even greater obstacle to their ability to
keep [J.S.] safe with [I.S.] residing in the same home.
Additionally, therapists are recommending against [Children]
residing in the same home at this time. Based on [I.S.’s] past
sexual abuse of [J.S.], it is unlikely that those behaviors would
not reoccur as she is only in the beginning stages of therapy.
[I.S.’s] therapy must be completed before the siblings are placed
together. [J.S.] has not made progress toward reconciling his
negative emotions surrounding the abuse and his anger is
directed at [I.S.]. [J.S.] is also only at the beginning stages of
therapy. Placing [Children] together at this time puts [J.S.] at
serious risk of additional emotional trauma as well as again being
sexually abused by [I.S.].
19. . . . Fathers [sic] plan to ensure the [Children’s] safety is
insufficient. Fathers [sic] belief that there will be line of sight
supervision of [Children] at all times is unrealistic. Fathers [sic]
plan to have [I.S.] share a room with her step-sister is unwise and
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 9 of 14
puts another child at risk. Father does not have therapy in place
for [Children]. Father does not appear to fully understand the
severity of [I.S.’s] behaviors and he is therefore unable to keep
[Children] safe if they are placed in the same home before their
therapy is completed.
(App. Vol. II at 172-3.) Father agrees that a “line of sight” plan is “unrealistic,
but he argues that was not the plan.” (Br. of Appellant at 22.) Instead, he
claims that his safety plan was that Children would be monitored at all times.
[17] Father directs us to his safety plan, wherein he provides for an “informed
supervisor” who is an adult, “[f]ree of sex offending history,” “[f]ree of any
denial” about the situation between Children, and free of illegal drugs and using
alcohol “to the point of impairment.” (Ex. Vol. I at 26.) If an informed
supervisor is not available, under the plan Father is responsible for securing
“alternative supervision.” (Id.) The safety plan indicates J.S. is to not have
unsupervised contact with I.S. “either directly or indirectly.” (Id.) The safety
plan sets forth the same supervision requirements for I.S., adding that “I.S. will
not be responsible to babysit or care- take for J.S.” (Id. at 27.)
[18] While we agree the evidence does not support the characterization of Father’s
supervision plan for Children as one of “line of sight,” we disagree with Father
that his plan is sufficient. While Father contends that, under his safety plan
“there would be no opportunity for sexual abuse to reoccur,” (Br. of Appellant
at 23), that statement ignores the fact that he works at night, his wife works
during the day, and there are no identified alternate caregivers for Children. He
does not challenge the juvenile court’s findings that he does not fully
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 10 of 14
understand the nature and severity of the incident that occurred between
Children and his plan ignores Children’s therapists’ recommendations that
Children not live together until they have completed therapy.
[19] Further, on appeal, Father continues to argue that the risk of additional abuse
by I.S. toward J.S. is not supported by the evidence, despite both therapists
testifying to the contrary. J.S.’s therapist reported J.S. should not live with I.S.
until J.S. is able to work past a pattern of “anger outburst[s] which involved
yelling . . . [and] are directed at [I.S.] right now.” (Tr. Vol. II at 79.) I.S.’s
therapist testified that she has not identified what led to I.S.’s abuse of J.S. and
thus she cannot work toward keeping “it from happening again.” (Id. at 70.)
I.S.’s therapist stated that the “[b]est practice” would be that I.S.’s “treatment
must be completed before [Children] are placed together.” (Id.) Father
maintains the fact that Children cannot be placed together until therapy is
“completed” is a “vague and intrusive mandate which usurps a Father’s right to
make his own parenting decisions about his family’s and children’s future.”
(Br. of Appellant at 24.)
[20] Father blames the sexual abuse incident between Children on Mother’s lack of
supervision and contends he provided sufficient supervision for Children during
his parenting time and can continue to provide supervision without DCS
intervention. However, Father testified that he observed Children “[w]restling”
and told them to “stop” and disciplined them prior to the incident, (Tr. Vol. II
at 55), and Father’s admonishments did not ultimately prevent I.S. from
sexually abusing J.S. While we agree that the characterization of Father’s plan
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 11 of 14
as “line of sight” is not necessarily supported by the evidence, it does not
change the fact that Father’s plan to constantly monitor Children while he is
working, his wife is working, and without having identified appropriate
alternative caregivers, in addition to seemingly minimizing the seriousness of
the situation between Children, is insufficient to meet Children’s needs.
Father’s arguments to the contrary are invitations for us to reweigh the
evidence, which we cannot do. See In re Des. B., 2 N.E.3d at 836 (appellate
court does not reweigh evidence or judge the credibility of witnesses on appeal).
2. Conclusions of Law
[21] Father challenges the juvenile court’s conclusions of law supporting its
adjudication, and we simply determine whether the findings are sufficient to
support the judgment. In re A.H., 751 N.E.2d 690, 695 (Ind. Ct. App. 2001),
trans. denied. Father argues Children are not CHINS because the incident
between Children happened when Children were unsupervised at Mother’s
house and such an incident would not occur at Father’s house. Again, this
argument ignores the testimony of Children’s therapists who noted each child
needed specialized therapy to address what led to the sexual abuse, in I.S.’s
case, and how to deal with the anger about the traumatic event, in J.S.’s case.
[22] The fact that the sexual abuse incident between Children occurred while they
were in Mother’s care and not Father’s care does not mean that DCS
intervention is not necessary. See In re N.E., 919 N.E.2d at 105 (“the acts or
omissions of one parent can cause a condition that creates the need for court
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 12 of 14
intervention”). Father, who observed inappropriate behaviors between
Children prior to the sexual abuse, did not seek treatment before J.S. was
traumatized by I.S.’s actions, and Father now questions the recommendations
of the therapists in place to help Children. Because of the incident at Mother’s
house, Children now need therapy, and that therapy has not been provided by
either parent, and thus the coercive intervention of the court is needed to
provide that therapy.
[23] Further, J.S., who was in Father’s care at the time of the juvenile court’s order,
had missed multiple therapy sessions because Father took him to violin lessons
instead, which indicates Father did not make therapy a priority. Based thereon,
we cannot say that the juvenile court erred when it adjudicated Children as
CHINS. See Matter of E.K., 83 N.E.3d 1256, 1261 (Ind. Ct. App. 2017) (“In
order for a child to be a CHINS, DCS must prove not only that one or the other of
the parents suffers from shortcomings, but also that the parents are unlikely to
meet a child’s needs absent coercive court intervention.”) (emphasis added),
trans. denied; and contra id. at 1262 (reversing CHINS adjudication because DCS
did not prove coercive intervention of the court was necessary when parents
had made great strides in addressing the issues that resulted in CHINS
investigation, retained custody of their children, and were actively participating
in treatment).
Conclusion
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 13 of 14
[24] We conclude DCS presented sufficient evidence to support Finding 15.
Regarding Findings 12, 18, and 19, while we agree the characterization of
Father’s supervision plan was incorrect, it does not change the evidence that his
safety plan was insufficient to meet Children’s needs. Based on that evidence
and the juvenile court’s other findings, we hold the juvenile court did not err
when it adjudicated Children as CHINS. Accordingly, we affirm the juvenile
court’s decision.
[25] Affirmed.
Riley, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-JC-706 | September 10, 2020 Page 14 of 14