In the Matter of S.S., N.S., and M.S., (Minor Children), Children in Need of Services, and V.S. (Mother) v. The Indiana Department of Child Services (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 Feb 28 2020, 10:13 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
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE:
Isabella Bravo Curtis T. Hill, Jr.
Bloomington, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of S.S., N.S., and February 28, 2020
M.S., (Minor Children), Court of Appeals Case No.
Children in Need of Services, 19A-JC-2107
and Appeal from the Monroe Circuit
Court
V.S. (Mother), The Honorable Stephen R. Galvin,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 53C07-1905-JC-251
53C07-1905-JC-252
The Indiana Department of 53C07-1905-JC-253
Child Services,
Appellee-Petitioner.
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2107 | February 28, 2020 Page 1 of 17
Case Summary
[1] V.S. (“Mother”) appeals the trial court’s order adjudicating Mother’s three
minor children, S.S., N.S., and M.S. (the “Children”) as children in need of
services (“CHINS”). We affirm
Issues
[2] Mother raises two issues on appeal, which we revise and restate as:
I. Whether the evidence was sufficient to support the trial
court’s conclusion that coercive intervention of the court
was necessary.
II. Whether the trial court abused its discretion in ordering
Mother to participate in a psychological evaluation in the
dispositional decree.
Facts
[3] Mother has three children: S.S., born April 2010; N.S., born December 2012;
and M.S., born July 2018. A.S. is the father of S.S.; A.W. is the father of N.S.;
and J.J is the father of M.S. 1
[4] In early 2019, Mother requested assistance from Community Partners to
support Mother because she was caring for a newborn and her older two
1
Mother only appeals the finding that the Children are CHINS. At the fact finding hearing, A.W. and J.J.
failed to appear, but their attorneys were present, and A.S. initially appeared by telephone and A.S.’s lawyer
was present in person.
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children had some “behavioral issues.” 2 Tr. Vol. II p. 86. On January 27,
2019, Mother began working with Allysha Ringer, a home based case worker at
Ireland Home Based Services (“Ireland”), on parenting education and
resourcing.
[5] Around March 12, Mother told Ringer she had issues with the home, including
bed bugs 3 and black mold. Ringer observed that the Children’s hair was unkept
and that, at times, the Children had “certain odors” related to poor hygiene. Id.
at 91. S.S.’s school also noted S.S.’s poor hygiene. Mother disclosed to Ringer
that S.S. had previously been sexually assaulted. Mother was also looking for
assistance with paying for rent and utilities because her mother
(“Grandmother”) was currently paying those bills.
[6] As best we can ascertain from the record, the following events occurred in April
2019 as follows. In early April, Mother and Ringer discussed that a friend
would begin watching M.S. while Mother was at work. The friend, Mother
said, did “some illegal things” and had a “trap house”; however, according to
Mother, M.S. would be safe “because [M.S. wouldn’t be] anywhere near any
drugs.” Id. at 89. Ringer advised against this plan for M.S. Mother also told
Ringer she was “jumped” and had to take M.S. to the emergency room because
she had to throw M.S. on the couch during the attack. Id. According to
2
Mother was working with a mental health professional since 2012 after the birth of N.S.
3
Mother was able to remedy the bed bug situation in the home.
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Mother, M.S.’s injuries resulted in “water” on the “skull or the brain” and
slight bruising. Id.
[7] Mother had a contentious relationship with her then-boyfriend, D.L. In early
April, S.S. called police after D.L. beat down a door to reach Mother. Mother
told Ringer that she “passed out in the bathroom,” and D.L. was trying to help
Mother. Id. at 90.
[8] Later in April, family case manager (“FCM”) Rebecca Geiselman began
working on Mother’s case after she received a report regarding domestic
violence and substance abuse issues in the home while the Children were
present. 4 Mother told FCM Geiselman that D.L. would not be allowed near
the Children unless he “had proven some sobriety” and “taken anger
management classes.” Id. at 39. FCM Geiselman also observed marks on
Mother’s body.
[9] Mother informed FCM Geiselman that the Children were home during the
arguments with D.L., and while they did not witness the fights, they saw the
“aftermath,” such as a broken bathroom door and holes in the wall. Id. at 40.
FCM Geiselman created a safety plan with Mother, which precluded D.L. from
being around the children. FCM Geiselman was later notified that D.L. was
hiding in the closet at Mother’s home while Mother was agreeing to the safety
4
It appears that Mother’s voluntary services with Ringer and Mother’s time with DCS on her case
overlapped in April. Mother’s services with Ringer ended on April 24.
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plan with FCM Geiselman. Mother stated to FCM Geiselman that she was
going to seek an order for protection against D.L.; however, the next day,
Mother called FCM Geiselman from the court clerk’s office because Mother did
not want to get the order for protection. Mother stated she only considered
obtaining the order for protection “in order to satisfy DCS’[s] request.” 5 Id. at
93.
[10] On April 21 and 22, Mother also complained to FCM Geiselman regarding her
relationship with Mother. Mother told FCM Geiselman that Grandmother
caused bruises on Mother’s wrist.
[11] Around the same time, on April 24, Mother and D.L. “got into a physical
altercation,” and N.S. contacted the police. Mother told FCM Geiselman that
Mother no longer wanted a relationship with D.L., that she wanted to move out
of Indiana, that her electricity was shut off, and her vehicle was repossessed.
[12] Mother’s issues in May 2019 were similar. On May 3, S.S. was suspended from
school for “drawing homicidal and suicidal statements and pictures” at school.
Id. at 47. On May 7, Mother married D.L. “so that he could be on her Section
8 housing and not be kicked out of her home.” Id. at 49. Mother admitted to
FCM Geiselman that “she knew it wasn’t the best idea” to marry D.L., but
5
Mother agreed, instead of filing an order for protection, to meet with FCM Geiselman regarding an
informal adjustment. Mother and D.L. did meet with FCM Geiselman and signed the informal adjustment,
but “it was not formally filed or ordered.” Tr. Vol. II p. 43.
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“she didn’t want him to be on the streets.” Id. at 50. Mother and D.L. agreed
D.L. would not be around the children unsupervised.
[13] On May 10, FCM Geiselman met with Mother, and Mother reported that she
was attacked by a group of men, which included A.W.’s friends, while she was
taking methamphetamine to a motel for A.W. Mother delivered
methamphetamine for A.W. because Mother’s electricity was shut off and she
needed money to feed the children, especially in light of M.S.’s special milk
needs due to gastrointestinal issues. Mother reported that her clothes were
ripped off and found Mother was wearing little clothing and was wrapped in a
blanket. Grandmother believed that Mother was impaired that night.
[14] After this incident, on or around May 10, Mother told FCM Geiselman that she
did not feel safe in her home, especially around D.L. or Grandmother;
therefore, FCM Geiselman arranged to take Mother to Middle Way House.
Mother initially agreed; however, Mother eventually changed her mind and
said that she only initially agreed “because that’s what DCS wanted.” Id. at 54.
Mother had no place to go and did not have money to pay for a hotel. Mother
could not formulate a safety plan for the Children; therefore, FCM Geiselman
detained the Children.
[15] When D.L. returned home while FCM Geiselman was detaining the Children,
Mother and D.L. began yelling at one another, and D.L. punched a tree and a
mailbox and ripped off his shirt in anger. FCM Geiselman described the
behavior as “[e]rratic, aggressive, [and] scary.” Id. at 55.
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[16] On May 13, 2019, DCS filed a request to detain the Children. A short time
later, Mother told FCM Geiselman that Mother intended to get an order for
protection, she wanted to get the marriage annulled, and she wanted to get
away from both D.L. and Grandmother. 6
[17] The trial court granted DCS’s request to detain the Children on May 16, 2019.
On May 15, 2019, DCS filed a petition alleging the Children are CHINS. The
petition alleged that: Mother struggled with domestic violence and substance
abuse; Mother has broken safety plans with regard to the Children; Mother has
a history of mental health disorders; Mother is unemployed and financial
unstable; and that Mother’s current husband, D.L., has been allowed to remain
in the home with the Children despite D.L.’s violence towards Mother.
[18] Mother began working with Brianna Underhill, a therapist at Centerstone, in
June 2019 after a referral by DCS. Mother’s diagnosis at the time of intake
with Underhill was major depressive disorder and sedative use disorder;
however, Underhill also believed Mother suffered from borderline personality
disorder. Mother told Underhill that she struggled with anger; was taking more
of her Adderall than what was prescribed; and was taking benzodiazepine
several days before her intake session. Mother also recounted to Underhill an
6
As discussed below by Officer Shrake, it appears Mother did get the order for protection; however, it also
appears Mother subsequently requested that order for protection dismissed. FCM Geiselman was uncertain
if Mother ever obtained the order for protection at this time.
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occasion where D.L. grabbed a backpack on Mother’s back, pulled Mother
backwards and caused Mother to fall during an argument.
[19] On June 17, 2019, the trial court held a fact finding hearing regarding the
CHINS petition. At the fact finding hearing, Mother testified that the violence
between her and D.L. was not physical but “more emotional . . . like screaming
and yelling,” and that D.L. would “hit walls or the furniture or something.”
Tr. Vol. II p. 10. Mother also testified that she completed another behavioral
assessment but that she was not told her diagnosis. At the time of the fact
finding hearing, Mother was living with Grandmother.
[20] Mother also testified that she has been participating in voluntary services
because Mother was “tired of people thinking [she was] not doing anything for
[her] kids.” Tr. Vol. II pp. 16-17. Mother testified she was not selling drugs for
A.W.
[21] Mother testified she told FCM Geiselman she would go anywhere other than
Middle Way House, but instead, FCM Geiselman just “took away the kids.”
Id. at 162. Finally, Mother testified that her court date for her divorce with
D.L. was scheduled for July 15.
[22] Maria Corrosco-Williams, with Monroe County Community School
Corporation at Templeton, testified that she spoke with Mother regarding
behavioral issues with N.S. and S.S. Specifically, Corrosco-Williams testified
that S.S. discussed harming herself and others, and that Corrosco-Williams
specifically discussed with Mother the issue regarding S.S.’s notes and
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drawings; on one occasion S.S. was swallowing push-pins at school. S.S. was
sent home twice in four months due to behavioral concerns. S.S. also attended
school without shoes one day in January 2019, after Mother contends S.S. hid
her shoes and could not find the shoes.
[23] Mother testified that S.S. drew the pictures at school because her therapist told
her to use her words and S.S. has a problem “expressing her emotions.” Tr.
Vol. II p. 22. Mother also testified that she has been working on a resolution to
stop S.S. from chewing push pins. According to Mother, S.S. has been seeing
service providers to assist her with these issues.
[24] During a break in the fact finding hearing, Mother asked Grandmother not to
testify. Grandmother, however, testified that Mother reported that A.W. and
D.L. both forced Mother to take drugs in the past.
[25] In May, Officer Rob Shrake, with the Bloomington Police Department, was
tasked with investigating a fire at Mother’s home. Although the investigation
was ongoing, Officer Shrake testified that officers found a fire was “set” in the
home; Mother did not always cooperate with investigating officers. Id. at 35.
Officer Shrake also discovered in his investigation that, according to Mother,
Mother stated she “did get a protective order”; however, upon Officer Shrake
following up with the court clerk’s office, the office informed Officer Shrake the
protective order was dismissed because Mother “withdrew her request.” Id. at
37.
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[26] On July 19, 2019, the trial court entered an order finding the Children were
CHINS. Relevant to Mother’s appeal, the trial court concluded:
[Mother] has engaged in repeated incidents of domestic violence
with her boyfriend, [D.L.], in the presence of the children. The
children have been forced to call the police to protect their
mother. [Mother] has subsequently lied about the nature of these
altercations. She has refused assistance in protecting herself and
her children from [D.L.]. She married [D.L.]. [Mother] sells
controlled substances for [A.W.] and abuses controlled
substances. She has been diagnosed with Sedative Use Disorder.
[Mother] does not believe that she needs substance abuse
treatment. [Mother] admits that [M.S.] was injured during an
altercation in her home. [Mother] sent [S.S.] to school without
shoes in January, 2019. [S.S.] suffers from emotional and
behavioral problems. [S.S.] has threatened to commit suicide
and to harm others. It is reasonable to infer that the domestic
violence in [S.S.’s] home and her mother’s ongoing substance
abuse are having a negative impact on the child. None of the
fathers are able and willing to care for their children. Clearly, the
coercive intervention of the Court is necessary to ensure the
health and safety of [S.S.], [N.S.], and [M.S.].
Appellant’s App. Vol. II p. 36.
[27] At the dispositional hearing, Mother’s attorney questioned witnesses regarding
Mother’s compliance with her individual therapy. Mother also testified that she
meets with her therapist bi-weekly. Mother’s counsel argued that, although
DCS has requested a psychological evaluation, Mother already completed a
psychological evaluation, as discussed at the CHINS fact finding hearing. DCS
countered that the prior evaluation was not a psychological evaluation and that
Centerstone, Mother’s new provider, would request a psychological evaluation.
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The CASA stated that she believed Mother should have a psychological
evaluation based on Mother’s “mental issues, [and] substance abuse issues.” Id.
at 193. The CASA also testified that the “psych eval is more in depth” than the
evaluation Mother had prior to the CHINS fact finding hearing. Id. at 194.
Still, Mother objected to the psychological evaluation, arguing that the CASA
and DCS did not provide evidence to create “a basis either in [Mother’s] failure
to comply with services or the service provider recommending a psychological
evaluation.” Id. at 195.
[28] The trial court stated, at the hearing, that it “believe[d] that a psychological
evaluation, independent of whether or not DCS believes it is necessary . . . is
necessary based on the findings of fact in this case.” Id. at 196. The trial court
entered a dispositional order on August 12, 2019, which ordered the Children
to remain in their placement and required Mother, in part, to: complete a
substance abuse assessment and complete the recommendations at a 95%
compliance rate; submit to weekly random drug screening; participate in
services; maintain contact with the FCM; maintain stable and safe housing;
maintain stable and legal employment; avoid committing acts of domestic
violence; have any persons responsible for the Children approved by the FCM;
participate in a parenting assessment; and participate in a psychological
evaluation and complete the recommendations at a 95% compliance rate.
Mother now appeals.
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Analysis
I. Sufficiency of the Evidence
[29] Mother argues the evidence is insufficient to conclude that the Children are
CHINS. CHINS proceedings are civil actions; thus, “the State must prove by a
preponderance of the evidence that a child is a CHINS as defined by the
juvenile code.” N.L. v. Ind. Dep’t of Child Servs (In re N.E.), 919 N.E.2d 102, 106
(Ind. 2010). On review, we neither reweigh the evidence nor judge the
credibility of the witnesses. Id. Here, the trial court entered findings of fact and
conclusions thereon in granting DCS’s CHINS petitions. When reviewing
findings of fact and conclusions thereon, we apply a two-tiered standard of
review. First, we determine whether the evidence supports the findings, and
second, we determine whether the findings support the judgment. In re I.A., 934
N.E.2d 1127, 1132 (Ind. 2010). We will set aside the trial court’s judgment
only if it is clearly erroneous. Id. A judgment is clearly erroneous if the
findings do not support the trial court’s conclusions or the conclusions do not
support the judgment. Id.[30] Indiana Code Section 31-34-1-1 provides that:
. . . [A] child is a child in need of services if, before the child
becomes eighteen 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,
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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.
[31] “[T]he purpose of a CHINS adjudication is to protect children, not [to] punish
parents.” In re N.E., 919 N.E.2d at 106. A CHINS adjudication is not a
determination of parental fault but rather is a determination that a child is in
need of services and is unlikely to receive those services without intervention of
the court. Id. at 105. “A CHINS adjudication focuses on the condition of the
child . . . . [T]he acts or omissions of one parent can cause a condition that
creates the need for court intervention.” Id. (citations omitted).
[32] Mother’s specific argument is that DCS failed to prove that Mother will only
meet the Children’s needs with the coercive intervention of the trial court.
Indiana Code Section 31-34-1-1(2), as described above, “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.’” In re D.J. v. Indiana
Dept. of Child Services, 68 N.E.3d 574, 580 (Ind. 2017) (quoting In re S.D., 2
N.E.3d 1283, 1287 (Ind. 2014)) (emphasis supplied). When considering this
requirement, “courts should consider the family’s condition not just when the
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case was filed, but also when it is heard.” D.J., 68 N.E.3d at 580 (quotations
omitted). “Doing so avoids punishing parents for past mistakes when they have
already corrected them.” Id. at 581.
[33] Mother argues court intervention was not necessary because: (1) she initiated
services to help with the Children’s needs; (2) she was in the process of
divorcing D.L. and, thus, the Children no longer need to be protected from
domestic violence; (3) Mother was getting help for her substance abuse issues,
and she only delivered illegal substances once for A.W.; and (4) Mother was
taking care of the Children’s basic needs. 7
[34] Mother’s assertions are nothing more than a request for us to reweigh the
evidence, which we cannot do. While we commend Mother for taking a
proactive step in getting assistance before DCS was involved in Mother’s case,
Mother has continually struggled to maintain a safe home and plan for the
Children in the home.8 Just over one month before the CHINS fact finding
hearing, Mother married D.L. despite concerns regarding the Children’s safety.
Although Mother has said many times that she does not want to be in a
7
Mother argues the Children’s basic needs were demonstrated as met because: the conditions of
Mother’s home did not endanger the Children, Mother got appropriate housing on her own, Mother
took the Children to receive their medical care, there was no evidence the Children did not have food,
S.S. only went to school without shoes once and Mother was committed to S.S.’s education, Mother
actively sought educational assistance, and there was no evidence that Mother allowed someone in a
“trap house” to watch M.S. – only that she sought advice. Appellant’s Br. p. 28.
8
In her brief, Mother argues that the evidence does not support the trial court’s finding that Mother was
noncompliant with Ringer’s and Mother’s voluntary services. We disagree. At the CHINS fact finding
hearing, Ringer testified: “[w]ith services, I would say during the course of services she didn’t always
complete the task that was given.” Tr. Vol. II p. 91.
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relationship with D.L., she has also changed her mind many times. Mother has
identified, more than once, that it is not safe for the Children to be around D.L.
Separately, M.S. suffered bruises and “water on the brain” from a violent
altercation in which Mother was involved. Tr. Vol. II p. 89.
[35] While it appears that Mother has taken S.S. to some level of therapy to help her
with issues that perhaps stem from an earlier sexual assault, Mother is
seemingly dismissive of the harm that S.S. may cause to herself or others. After
S.S. wrote notes in school discussing violent and suicidal thoughts, Mother
wrote off the behavior as S.S. expressing herself in a way directed by her
therapy.
[36] Based on all these facts, there was sufficient evidence to find coercive
intervention of the court was required. It is not clearly erroneous for the trial
court to conclude, based on Mother’s history of conduct, including leading up
to the CHINS fact finding hearing, that Mother needed the coercive
intervention of the court to provide for the Children’s safety.
II. Mother’s Psychological Evaluation
[37] Mother also contends that the trial court erred in requiring Mother, through the
dispositional order, to complete a psychological evaluation. “Although the
juvenile court has broad discretion in determining what programs and services
in which a parent is required to participate, the requirements must relate to
some behavior or circumstances that was revealed by the evidence.” Matter of
R.G., 130 N.E.3d 1171, 1180 (Ind. Ct. App. 2019) (quoting In re K.D., 962
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N.E.2d 2d 1249, 1258 (Ind. 2012)), trans. denied. “Indeed, ‘forcing unnecessary
requirements upon parents whose children have been adjudicated as CHINS
could set them up for failure with the end result being not only a failure to
achieve the goal of reunification, but potentially, the termination of parental
rights.” R.G., 130 N.E.3d at 1180 (citing A.C. v. Marion Cty. Dep’t of Child Sevs.,
905 N.E.2d 456, 464-65 (Ind. Ct. App. 2009)).
[38] Mother’s specific argument is that Mother already participated in a
psychological evaluation and that Mother was already participating in services
and assessments on her own. In ordering her to do another evaluation, Mother
argues, the trial court placed “an unnecessary hurdle in front of Mother that
could unduly interfere with her ability to reunite with her children.”
Appellant’s Br. p. 30. DCS, in response, argues that the previous evaluation,
discussed at the CHINS fact finding hearing was “only an intake review” and
not a complete psychological evaluation. Appellee’s Br. p. 31.
[39] We agree with DCS. The evidence presented was that this psychological
evaluation would be requested by the service provider and that the evaluation
was a different, and more comprehensive evaluation than the initial evaluation.
We cannot say the trial court abused its discretion when it ordered Mother to
participate in a more comprehensive psychological evaluation to determine the
services that could best help Mother with her mental health needs.
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Conclusion
[40] The trial court’s findings that Mother’s three children are CHINS are not
clearly erroneous. Moreover, the trial court did not abuse its discretion in
ordering Mother to participate in a psychological evaluation. We affirm.
[41] Affirmed.
Najam, J., and Vaidik, J., concur.
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