In the Matter of: V.G. (Minor Child), Child in Need of Services and R.G. (Mother) v. The Ind. Dept. of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Dec 28 2016, 9:08 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: December 28, 2016
V.G. (Minor Child), Court of Appeals Case No.
Child in Need of Services 49A02-1605-JC-1071
Appeal from the Marion Superior
and Court
R.G. (Mother) The Honorable Marilyn A.
Appellant-Respondent, Moores, Judge
The Honorable Rosanne Ang,
v. Magistrate
Trial Court Cause No.
The Indiana Department of Child
49D09-1511-JC-3428
Services,
Appellee-Petitioner.
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 1 of 13
Case Summary and Issues
[1] R.G. (“Mother”), a minor, is the mother of two-year-old V.G. A few weeks
after V.G was born, he began living with his father, L.C. (“Father”), and his
paternal grandmother (“Paternal Grandmother”). Mother asked Father to care
for V.G. because the electricity was shut off at her residence, where she lived
with her mother (“Maternal Grandmother”). In October 2015, Maternal
Grandmother kicked Mother out of the house, leaving her with no choice but to
spend a night outside before ultimately ending up in a shelter. The Indiana
Department of Child Services (“DCS”) filed a verified petition alleging Mother
to be a child in need of services (“CHINS”), and Mother was subsequently
adjudicated a CHINS. DCS also filed a verified petition alleging V.G. to be a
CHINS due to Mother’s inconsistent housing and inability to provide for V.G.’s
basic needs. Following a fact-finding hearing, the juvenile court adjudicated
V.G. a CHINS. Mother appeals the juvenile court’s adjudication of V.G. as a
CHINS, raising two issues for our review: (1) whether DCS presented sufficient
evidence to support the juvenile court’s determination V.G. is a CHINS; and (2)
whether the juvenile court’s dispositional order complied with Indiana Code
section 31-34-19-6. Concluding there is sufficient evidence and the juvenile
court’s dispositional order complied with the statute, we affirm.
Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 2 of 13
[2] V.G. is the child of Mother and Father.1 For the first few weeks following
V.G.’s birth, he lived with Mother and Maternal Grandmother at a relative’s
home. However, when the relative failed to pay the electric bill, the electricity
was shut off and Mother asked Father to care for V.G. V.G. has lived with
Father and Paternal Grandmother ever since.
[3] Following V.G.’s birth, Mother had an inconsistent and unstable housing
situation. From April 2014 to June 2014, Mother lived in her aunt’s home with
Maternal Grandmother and Mother’s siblings. In June 2014, Mother, Maternal
Grandmother, and Mother’s siblings moved into a different relative’s house and
lived there until August 2014. From August 2014 to September 2014, Mother’s
family lived in a shelter. In September 2014, Mother and her family lived with a
different aunt, and lived there until Maternal Grandmother found an apartment
in October 2015.
[4] In October 2015, Mother wanted to see V.G. and repeatedly asked Maternal
Grandmother to take her to pick him up. However, Maternal Grandmother
refused and told Mother she had given Paternal Grandmother guardianship of
V.G. without Mother’s knowledge or consent. On Halloween, Mother wanted
to take V.G. trick-or-treating with their family and asked Maternal
Grandmother to pick V.G. up from Father’s house. Maternal Grandmother
initially agreed, but later refused. Mother and Maternal Grandmother then
1
V.G.’s date of birth is April 6, 2014.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 3 of 13
began to argue and Maternal Grandmother “hit [Mother] in [the] head with a
pan.” Id. at 68. Mother called the police, and she and her siblings went to stay
with their father (“Maternal Grandfather”) for the weekend.
[5] The following week, Maternal Grandfather attempted to drop Mother off at
Maternal Grandmother’s house, but Maternal Grandmother refused to let her
come inside. Maternal Grandfather told her to “tell [Maternal Grandmother]
that she needs to let you in . . . she is your mother and she need[s] to let you in.
. . . If not, call my grandma.” Id. at 69. Maternal Grandfather left and Maternal
Grandmother did not let Mother inside the home, so Mother spent the
night outside. Mother went to school the next day and reported the incident
to her high school’s social worker who called DCS. Mother was placed at
Stopover, Inc., a local Indianapolis youth shelter, for “about a week” before
Maternal Grandfather picked her up. Id. at 70. During Mother’s stay at
Stopover, DCS opened a case and began investigating whether she was a
CHINS. Ultimately, Mother was adjudicated a CHINS and custody was
awarded to Maternal Grandfather. Mother began living with Maternal
Grandfather at a relative’s home, and DCS deemed that home “appropriate”
for Mother and approved her living there. Id. at 154.
[6] On November 24, 2015, DCS filed a verified petition alleging V.G. to be a
CHINS. The petition alleged:
1. [Mother], mother of [V.G.], has failed to provide the child
with a safe, stable, and appropriate living environment.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 4 of 13
2. [Mother] has not been providing the child with basic care and
necessities.
3. [V.G.] has been residing with [Paternal Grandmother] . . . but
[Paternal Grandmother] lacks guardianship for the child and
is unable to meet his medical needs.
4. [Mother] lacks stable housing, and she has not taken
necessary action to adequately address the above-mentioned
issues.
5. [Father], alleged father of [V.G.], is unable to ensure the
child’s safety and well being while in the care and custody of
[Mother].
6. Due to the foregoing reasons, the coercive intervention of the
Court is necessary to ensure the child’s safety and well being.
Appellant’s Appendix at 24.
[7] The juvenile court held a fact-finding hearing on March 28, 2016. At the
hearing, Mother testified that instead of staying with Maternal Grandfather, she
had been staying at her half-sister’s house with several other relatives. This
house had not yet been approved by DCS for Mother to reside there. Mother
also testified she did not have a job, although she was currently looking for one.
As to who would provide monetary support for V.G., Mother testified Maternal
Grandfather and her half-sister’s mother would help provide for V.G.’s basic
needs such as diapers, food, and clothing.
[8] DCS family case manager Shavon Flemmons testified her original concern for
V.G. was that “we had a minor mom and we had a minor child. . . . [M]om
had no place to go. [V.G.] was placed with [Paternal Grandmother] and
[F]ather, but they didn’t have any type of guardianship or custody of him.” Tr.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 5 of 13
at 136. She further testified of her concerns with Mother’s new housing
situation, stating,
I haven’t been able to be in her home and I haven’t been able to
verify actually where they are staying and when we came to our
last hearing, that was when . . . it was just brought to my attention
that she was staying [at her half-sister’s house]. So, she
told me . . . [Maternal Grandfather] and her sister’s mother had
spoken and, I guess, they had said that . . . she could stay there. I
told her that was not an issue, however, I need to know that
because if that’s where you’re living, we have to do the proper
background checks and fingerprints and things for you to be living
there. And . . . that has—has been the only issue that
we’ve had, which is just the continued [sic] of not knowing, being
able to verify, actually. They say that [Maternal Grandfather’s
house] is the address, but I’ve never seen them in that address.
Id. at 143-44.
[9] At the conclusion of the hearing, the juvenile court found the allegations in the
petition to be true and adjudicated V.G. as a CHINS. On April 28, 2016, the
juvenile court issued a dispositional order leaving V.G. in relative care. The
juvenile court further ordered Mother to participate in home-based case
management, parent education, and to follow DCS’ recommendations. As to
Father, the juvenile court ordered him to participate in the Father Engagement
program and to follow DCS’ recommendations. Mother now appeals.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 6 of 13
I. CHINS Adjudication
[10] Mother argues DCS did not present sufficient evidence to support the juvenile
court’s determination V.G. is a CHINS. Indiana Code section 31-34-1-1
provides circumstances under which a child may be deemed a CHINS. It
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.
Ind. Code § 31-34-1-1. DCS must prove by a preponderance of the evidence a
child is a CHINS. Ind. Code § 31-34-12-3. Further, the CHINS statutes do not
require that a court wait until a tragedy occurs to intervene. Roark v. Roark, 551
N.E.2d 865, 872 (Ind. Ct. App. 1990). Rather, a child is a CHINS when he or
she is endangered by parental action or inaction. Id. The purpose of a CHINS
adjudication is not to punish the parents, but to protect the children. In re L.C.,
23 N.E.3d 37, 39 (Ind. Ct. App. 2015), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 7 of 13
[11] When we review the sufficiency of the evidence in a CHINS determination,
“[w]e neither reweigh the evidence nor judge the credibility of the witnesses.”
In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). Instead, “[w]e consider only the
evidence that supports the [juvenile] court’s decision and reasonable inferences
drawn therefrom.” Id. We reverse only upon a showing that the decision of the
juvenile court was clearly erroneous. Id.
A. Mother’s Ability to Care for V.G.
[12] Mother first argues there is insufficient evidence to establish V.G. “was
deprived of necessary food, clothing, shelter, supervision, medical care, [or]
education[.]” Brief of Appellant at 15. Specifically, she argues because she
placed V.G. with Father and Paternal Grandmother, she did not fail to provide
a safe and stable home for V.G. Initially, we note Father and Paternal
Grandmother both lack a guardianship for V.G., and as of the date of the fact-
finding hearing, Father had not established paternity. Further, the evidence
presented at the fact-finding hearing indicates Mother lived in a shelter on two
separate occasions and spent the night outside alone once—albeit not while
V.G. was in her care—as a result of her parents’ refusal to support her. From
April 2014 until the fact-finding hearing in March of 2016, Mother has lived in
at least six different places and often with different members of her extended
family. Even after her own CHINS proceeding in which DCS determined
Maternal Grandfather’s residence was appropriate for her, Mother decided she
would rather live at her half-sister’s home, which, at the time of the fact-finding
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 8 of 13
hearing, DCS had not yet inspected, approved, or determined was suitable for
Mother.
[13] The evidence further establishes Mother has no ability to provide for V.G.’s
basic needs such as food and clothing. Mother testified she is still a junior in
high school and currently does not have a job or income. As for who would
provide for V.G.’s basic needs, Mother testified Maternal Grandfather and her
half-sister’s mother have offered to help with expenses. Maternal Grandfather
testified, “I could give him all the support that any grandparent would give . . .
their grandchild.” Tr. at 163. However, given the fact Mother has decided to
move out of Maternal Grandfather’s home and his past reluctance to assist
Mother when she needed a place to stay, the juvenile court did not find his offer
to help to be credible. The juvenile court stated,
And, realistically, I do have to wonder, if [Maternal Grandfather]
is now saying that he is a positive support, I would have to
wonder where that support was when [Mother] had to sleep
somewhere—I still don’t know—when he dropped [Mother] off
at [her] mom’s. And so I definitely doubt the veracity of that
testimony.
Tr. at 196; see also In re K.D., 962 N.E.2d at 1253 (appellate courts will not
reweigh evidence or judge the credibility of witnesses).
[14] Based upon our review of the record, we conclude there is sufficient evidence to
support the juvenile court’s determination V.G. is a CHINS. For most of his
young life, V.G. has been left in the care of Father and Paternal Grandmother,
neither of whom have established a guardianship, nor has Father established
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 9 of 13
paternity. Further, Mother is unable to provide V.G. with basic care that he
needs such as shelter, food, and clothing. Mother has lived in multiple
residences in the last two years, including two stints in local shelters because
she had nowhere to live. She has no income to provide V.G. with his basic
needs, and the juvenile court simply did not find Maternal Grandfather’s
testimony that he would provide for V.G. to be credible. The juvenile court’s
determination V.G. is a CHINS is not clearly erroneous.
B. Coercive Authority of the Court
[15] Mother also argues there is insufficient evidence to support the finding that
coercive intervention of the court is necessary to ensure V.G.’s safety. DCS
must prove “the parent’s actions or inactions have seriously endangered the
child, that the child’s needs are unmet, and (perhaps most critically) that those
needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,
1287 (Ind. 2014). The requirement that the child’s needs are unlikely to be met
without the intervention of the court guards against unwarranted State
interference with family life, reserving interference for families “where parents
lack the ability to provide for their children,” not merely where they “encounter
difficulty in meeting a child’s needs.” Lake Cnty. Div. of Family & Children Servs. v.
Charlton, 631 N.E.2d 526, 528 (Ind. Ct. App. 1994) (emphasis in original).
[16] Here, DCS has demonstrated Mother has more than mere difficulty in
providing for V.G.’s needs. Mother has provided little to no care for V.G. since
he was born, nor did she have the ability to, despite the fact she has sole legal
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 10 of 13
custody of V.G. See Ind. Code § 31-14-13-1 (stating a biological mother of a
child born out of wedlock has sole legal custody of the child). As noted above,
Mother has no income and, until recently, has not had a stable living situation
since V.G. was born. Since DCS became involved in Mother’s life, Mother has
found suitable housing which has been approved for her to have unsupervised
parenting time with V.G, and we commend Mother for her recent
improvements and for complying with DCS. However, in light of the fact
Mother is a minor, has no job or source of income, has never consistently taken
care of V.G., and has struggled in the past to find or maintain suitable housing,
the juvenile court’s conclusion that coercive intervention is necessary is not
clearly erroneous.
II. Dispositional Order
[17] Finally, Mother argues the juvenile court erred in finding continued supervision
was necessary to protect V.G., and asserts the dispositional order does not
comply with Indiana Code section 31-34-19-6, which states,
If consistent with the safety of the community and the best
interest of the child, the juvenile court shall enter a dispositional
decree that:
(1) is:
(A) in the least restrictive (most family like) and most
appropriate setting available; and
(B) close to the parents’ home, consistent with the best
interest and special needs of the child;
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 11 of 13
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the
child’s parent, guardian, or custodian; and
(5) provides a reasonable opportunity for participation by the
child’s parent, guardian, or custodian.
[18] We disagree with Mother that the juvenile court’s dispositional order does not
comply with Indiana Code section 31-34-19-6 or that it erred in ordering
continued supervision. The dispositional order granted wardship of V.G. to
DCS and maintained V.G.’s placement in relative care. The juvenile court
ordered Mother to participate in home-based case management, parent
education, and to follow DCS’ other recommendations. The dispositional
order also recognizes it is in V.G.’s best interest to remain outside of Mother’s
care; however, the juvenile court authorized Mother to have unsupervised
parenting time with V.G.
[19] As to Mother’s argument the order was not the least disruptive of family life or
the least restrictive of family autonomy, we note that V.G.—aside from a few
weeks following his birth—has not lived with Mother and the juvenile court
maintained V.G.’s placement in relative care where he has been for almost two
years. Aside from Mother’s ordered participation in parental education and
home-based case management, minimal change occurred in Mother’s or V.G.’s
family life. Further, the juvenile court permitted Mother to exercise
unsupervised parenting time with the ultimate goal of reunification with V.G.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 12 of 13
In sum, Mother has failed to demonstrate the dispositional order did not
comply with the statute or that continued supervision was unnecessary.
Conclusion
[20] DCS presented sufficient evidence to prove V.G. is a CHINS and the juvenile
court’s order complied with Indiana Code section 31-34-19-6. Accordingly, we
affirm the juvenile court’s judgment and order.
[21] Affirmed.
Kirsch, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JC-1071 | December 28, 2016 Page 13 of 13