In the Matter of: L.W. (Minor Child), And M.W. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
May 19 2020, 8:16 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna K. Weissmann Robert J. Henke
Lawrenceburg, Indiana Abigail Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: May 19, 2020
L.W. (Minor Child), Court of Appeals Case No.
20A-JC-31
And
Appeal from the Decatur Circuit
M.W. (Father), Court
Appellant-Respondent, The Honorable Timothy Day,
Judge
v. Trial Court Cause No.
16C01-1909-JC-321
Indiana Department of Child
Services,
Appellee-Petitioner.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, M.W. (Father), appeals the trial court’s adjudication of
his minor child, L.W. (Child), as a Child in Need of Services (CHINS).
[2] We affirm.
ISSUE
[3] Father presents this court with three issues on appeal, which we restate as:
Whether the trial court erred by adjudicating Child to be a CHINS.
FACTS AND PROCEDURAL HISTORY
[4] Mother and Father are the biological parents to Child, born on April 13, 2011. 1
While Child resided with both parents, Father had physical custody of the
Child. On September 8, 2019, Westport Police Department officer Tony
Blodgett (Officer Blodgett), was dispatched to a domestic violence incident at
parents’ home. Upon arrival, Officer Blodgett observed Mother “bleeding from
her nose, sobbing, [and] crying uncontrollably.” (Transcript p. 29). Mother
told the officer that she and Father “had gotten in an argument over money,
and that they had gotten up and . . . bump[ed] chests together. And he had
then spit in her face. He had hit her and bent her backward over the top of the
countertop; was choking her to the point where she felt like she was going to
lose consciousness, and had taken a frying pan and hit it on the countertop so
1
Mother does not participate in this appeal.
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badly that it had bent the frying pan almost in half.” (Tr. pp. 29-30). Child was
in the home at the time of the altercation. Officer Blodgett spoke with Father,
who had left the home with Child by the time the officer arrived, over the
telephone. Father advised the officer that Mother had assaulted him. He
described Mother “head-butt[ing]” him and that “any marks that she had on
her, she would have done herself.” (Tr. pp. 38-39). Father refused to go to the
police station so that Officer Blodgett could gather evidence supporting Father’s
statement. Upon further investigation, Officer Blodgett was informed by
Bartholomew County law enforcement officers that they had responded to prior
domestic violence incidents at parents’ home.
[5] The Department of Child Services (DCS) became involved with the family on
September 17, 2019, when the trial court authorized the emergency removal of
the Child from her parents’ care after Father “abscond[ed] with the [C]hild to
elude law enforcement with regard to [] domestic violence” that occurred in the
home, and due to Mother’s history of drug abuse and “deplorable home
conditions.” (Appellant’s App. Vol. II, pp. 13-14). That same day, DCS filed
its CHINS petition and an initial hearing was held during which Mother
admitted the allegations and Father entered a denial. Two days later, on
September 19, 2019, DCS filed an amended CHINS petition, alleging that the
Child had been exposed to domestic violence by Father against Mother. As a
result, Father had been charged with criminal confinement, domestic battery
resulting in bodily injury, and domestic battery against Mother. DCS located
the Child in Bartholomew County where Father had placed her after fleeing
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from law enforcement officers when the domestic violence incident occurred.
Child was dirty, wearing dirty clothes, and had dog feces caked on the soles of
her feet.
[6] On November 14, 2019, the trial court conducted a fact-finding hearing. At the
hearing, Mother characterized the incident as “an argument” and a
“disagreement.” (Tr. p. 46). She recanted her previous statement in which she
pointed to Father as the initial aggressor, stating that she could not remember
Father using violence against her, but instead she remembers “flipping out my
own self because I thought he was – in my head I was thinking he was going to
take my child.” (Tr. p. 46). Mother denied sustaining any injuries during the
incident.
[7] Father denied any domestic violence issues existed between him and Mother.
He testified that during the incident on September 8, 2019, Mother “jumped up
and started screaming and acting crazy” so he grabbed “a pan and beat it on the
counter trying to get her to shut up.” (Tr. p. 81). Father described Mother
“grabb[ing] [him] by the neck and [he] had a big cut.” (Tr. p. 86). Father took
Child and left the residence. As a result of the incident, the State charged
Father with three felonies, which were pending at the time of the fact-finding
hearing, and the criminal court imposed a no-contact order between Mother
and Father.
[8] At the hearing, Father confirmed Mother’s substance abuse issues, describing
her as a “monster” when she is using. (Tr. p. 80). He testified that at the time
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of the incident, Mother was taking “Klonopin and then whatever the neighbor
lady gave her.” (Tr. p. 80). Mother informed the trial court that she was
receiving treatment through the Indiana Treatment Center, she was enrolled in
counseling twice a month, and she was receiving methadone treatment for
substance abuse issues. Although Mother and Father were living apart due to
the no-contact order, Mother admitted that she would be staying with Father
absent the order.
[9] DCS’s Family Case Manager (FCM) testified that Mother described Father as
“controlling” which caused the FCM concern that Mother had recanted her
statement about the domestic violence incident under Father’s pressure. (Tr. p.
61). The FCM also informed the trial court that it is concerning that when
Mother is prescribed medication by her doctors, she appears to decide whether
she will continue to take the medication. At the hearing, the FCM was also
unaware of Mother receiving substance abuse treatment.
[10] At the close of the fact-finding hearing, the trial court found the allegations of
the CHINS petition to be true and adjudicated the Child to be a CHINS. The
court ordered both parents to participate in services and, concluding that the
Child’s detention was no longer necessary, ordered Child placed into Father’s
care. On January 3, 2020, after a dispositional hearing, the trial court ordered
Father, in pertinent part, to submit to random drug screens, to refrain from
engaging in acts of domestic violence, and to participate in and complete all
recommendations as a result of the domestic violence assessment.
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[11] Father now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[12] Father contends that the trial court abused its discretion in finding Child to be a
CHINS. In order to adjudicate a child as a CHINS, DCS must prove by a
preponderance of the evidence 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 . . . 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.
I.C. § 31-34-1-1. In making its determination, the trial court should consider
the family’s condition not just when the case was filed, but also when it was
heard. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014). A CHINS adjudication
cannot be based solely on conditions that have ceased to exist. In re S.A., 15
N.E.3d 602, 6011 (Ind. Ct. App. 2014), trans. denied. The adjudication must be
based on the evidence presented in court and not on the allegations in the
pleadings. Maybaum v. Putnam Co. O.F.C., 723 N.E.2d 951, 954 (Ind. Ct. App.
2000). In reviewing a CHINS determination, we do not reweigh evidence or
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assess witness credibility. Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct. App.
2017). We consider only the evidence in favor of the trial court’s judgment,
along with any reasonable inferences arising therefrom. Id.[13] Father maintains that the trial court erred in adjudicating Child to be a CHINS
because there was no evidence Child was in any danger, or that her needs
would go unmet in the absence of the coercive intervention by the trial court.
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
N.E., 919 N.E.2d 102, 105-06 (Ind. 2010). Nonetheless, “[n]ot every
endangered child is a child in need of services, permitting the State’s parens
patriae intrusion into the ordinarily private sphere of the family.” In re S.D., 2
N.E.3d at 1287. Rather, a CHINS adjudication under Indiana code section 31-
34-1-1 requires 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
family life. Id. State intrusion is warranted only when parents lack the ability
to provide for their children. Id. In other words, the focus 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. Id. Despite a “certain implication of parental fault in
many CHINS adjudications, the truth of the matter is that a CHINS
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adjudication is simply that—a determination that a child is in need of services.
In re N.E., 919 N.E.2d at 105.
[14] In support of his argument that a CHINS adjudication was an abuse of
discretion, Father relies on A.M. v. Ind. Dep’t of Child Servs., 45 N.E.3d 1252(Ind. Ct. App. 2015) and M.W. v. Ind. Dep’t of Child Servs., 119 N.E.3d 165 (Ind.
Ct. App. 2019). However, upon review, we find both cases inapposite to the
situation at hand. In A.M., the only evidence presented by DCS to support its
CHINS petition was a positive meconium test at the time of A.M.’s birth.
A.M., 45 N.E.3d at 1255-56. Based on the lack of any further evidence, we
declined to find evidence of endangerment. Id. In M.W., DCS became
involved after Mother called law enforcement when her two teenage daughters
got into a physical fight. M.W., 119 N.E.3d at 166-67. The evidence reflected
that, leading up to the CHINS hearing, mother voluntarily participated in
services, was enrolled in counseling, and had set up therapy sessions for both
daughters. Id. at 169. Mother also agreed the child needed therapy and
intended to continue providing it. Id. Finding itself “stunned that the juvenile
court found [c]hild to be a CHINS,” this court reversed the CHINS
adjudication as “[f]rom the outset, by calling the police, [m]other showed that
she simply needed some help—and she got it, through the services provided by
DCS. By the time of the CHINS hearing, it was readily apparent that the child
was not seriously endangered, and even more critically, that the coercive
intervention of the court was not required.” Id.
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[15] Here, the circumstances demand a different outcome than in A.M. and M.W.
At the time of the fact-finding hearing, neither Mother nor Father would admit
that a domestic violence issue existed, despite their prior history. Mother
recanted her initial story that Father was the aggressor and insisted that she
could no longer remember the incident, characterizing it as a disagreement and
argument despite telling Officer Blodgett that Father choked her to the point
where she almost lost consciousness. Father, in turn, blamed Mother and said
that she had harmed him. The trial court found that “Child has been exposed
to domestic violence by Father against Mother.” (Appellant’s App. Vol. II, p.
34). Yet, regardless of who the aggressor was, a problem of domestic violence
exists in the home which neither parent acknowledged. Officer Blodgett
elaborated that the family had a history of domestic violence issues and Mother
testified that without the no-contact order in place, the parties would be living
as a family again. As we have frequently recognized, a Child’s exposure to
domestic violence can support a CHINS finding. In re N.E., 919 N.E.2d at 105.
[16] It appeared that the instant incident of domestic violence was brought on by
Mother’s substance abuse as she had taken “Klonopin and then whatever the
neighbor lady gave her.” (Tr. p. 80). At the hearing, Father minimalized
Mother’s addiction and abuse of her medication. Father does not believe
Mother needs services, instead informing the court that “[s]he’s made a
mistake. She’s corrected. She’s sober today.” (Tr. p. 87). Although Mother
advised the trial court that she has sought treatment for her addiction, she had
yet to provide any proof of this to the FCM.
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[17] Recognizing that a CHINS determination is not a finding of guilt for either
parent, but rather a vehicle to ensure the safety of the child, we conclude that
parents’ actions have seriously endangered the Child and without coercive
intervention of the court, the Child will not receive the care she needs. Neither
Father nor Mother acknowledged the domestic violence in the house, instead
they downplayed it as an argument. Father minimalized the substance abuse
by Mother, and merely regarded her abuse as a mistake. The Child needs a
home environment that is stable and free of domestic violence and substance
abuse. The coercive intervention of the court is required to accomplish this goal
as parents were only living separately due to the no-contact order in place and
Father, although ordered to participate in a domestic violence assessment,
denied domestic violence was present in the home and actively challenged
DCS’s request to order Father to participate in the Batterers Intervention
Program Assessment. Accordingly, the trial court did not abuse its discretion
by adjudicating Child to be a CHINS.
CONCLUSION
[18] Based on the foregoing, we hold that the trial court properly adjudicated Child
to be a CHINS.
[19] Affirmed.
[20] Mathias, J. and Tavitas, J. concur
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