In the Matter of G.F., a Child in Need of Services, S.F. (Father) v. Ind. Dept. of Child Services (mem.dec) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jan 27 2015, 9:21 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael B. Troemel Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
Abigail R. Miller
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of G.F. (Minor January 27, 2015
Child), a Child in Need of Court of Appeals Cause No.
Services, 79A02-1405-JC-373
Appeal from the Tippecanoe
S.F. (Father) Superior Court
Appellant-Defendant, The Honorable Faith Graham, Judge
The Honorable Crystal Sanders,
v. Magistrate
Cause No. 79D03-1402-JC-35
Indiana Department of Child
Services,
Appellee-Plaintiff
Vaidik, Chief Judge.
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Case Summary
[1] S.F. (“Father”) appeals the trial court’s determination that his son G.F. is a
child in need of services (CHINS). Father contends that there is insufficient
evidence to support the trial court’s CHINS determination. Because we find
the evidence sufficient, we affirm.
Facts and Procedural History
[2] A.S. (“Mother”)1 has three children: G.F., born in October 2011; S.S., born in
February 2013; and B.W., born in February 2014. Father is the biological
father of G.F. and S.S.2 In January 2014, S.S. was adjudicated a CHINS after
she tested positive for methamphetamine at eight months old. At that time,
Mother and Father were not living together, and S.S. lived with Mother in
Indiana. G.F., who lived with Father in Illinois, was not involved in the
CHINS action. However, during S.S.’s CHINS proceedings, the trial court
warned Father to be vigilant about leaving G.F. in Mother’s care.
1 Mother does not participate in this appeal.
2 S.S. is not at issue in this appeal. B.W., G.F.’s half-sister, is also not at issue in this appeal. We discuss the
welfare of S.S. and B.W. only where it is relevant to this case.
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[3] One month later, Mother tested positive for the synthetic drug spice. The
Tippecanoe County Department of Child Services (TCDCS) removed all three
children from Mother’s care—including G.F., whom Father had left in Indiana
with Mother—and filed a petition alleging that G.F. and B.W. were CHINS.
TCDCS did not consider placing G.F. with Father because “there was a
question [about his] judgment in allowing [G.F.] to return [to Mother] knowing
[that] [S.S.] was [involved] in the [CHINS] case.” Tr. p. 28. G.F. was placed
in foster care.
[4] Father, who was still living in Illinois, sought custody of G.F. By agreement of
the parties, the trial court ordered TCDCS to begin the process of investigating
out-of-state placement with Father via the Interstate Compact on the Placement
of Children (ICPC). See Appellant’s App. p. 39 (“[B]y agreement of the parties,
Court ORDERS DCS to begin an ICPC with the State of Illinois regarding
possible placement of [G.F.] in [] Father’s care.”). The court ordered TCDCS
to conduct a home study and indicated that it would rule on the issue of G.F.’s
placement when the home study was complete. Id. at 46.
[5] The court held two evidentiary hearings on the CHINS petition in April 2014.
At the hearings, TCDCS caseworkers expressed concern about Father’s ability
to parent G.F. because of his criminal history, lack of employment, and
inability to drive. See Tr. p. 52 (“[T]here’s no employment, he has no
transportation . . . .”), 68 (“[H]e has no job . . . I’m not really sure how he has
means to support [G.F.] . . . . And the fact that he’s still on probation . . . .”).
Father has numerous criminal convictions, including a felony conviction for
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aggravated battery and three convictions for driving while intoxicated, and he
was on probation at the time of the hearings. Id. at 68, 104. As a result of his
convictions, Father had no driver’s license and struggled to find employment.
Id. at 88-89. During one period of incarceration in 2013, G.F. lived with
Father’s stepmother for three months because Father could not care for him.
Id. at 107. At the time of the hearings, Father had additional criminal charges
pending against him. Id. at 89, 105.
[6] Caseworkers also expressed concern about Father’s judgment—specifically, his
decision to expose G.F. to Mother’s boyfriend. During S.S.’s CHINS
proceedings, Father was told that Mother’s boyfriend was not to have contact
with G.F. until he passed background checks and drug screens. See id. at 85,
113 (TCDCS caseworker: “[W]e would not have given, nor did we give
[Father] permission to have [G.F.] around [Mother] with [Mother’s
boyfriend].”). Caseworkers presented evidence that Mother’s boyfriend had a
criminal history, including convictions for arson and theft, and had recently
tested positive for the synthetic drug spice. Id. at 27, 34, 39-40. Despite this,
Father had allowed G.F. to stay with Mother and Mother’s boyfriend while
Father returned to Illinois.
[7] At the conclusion of the second hearing, the trial court found that G.F. and
B.W. were CHINS. With respect to G.F., the court stated:
[T]here are issues with regard to [Father] concerning the criminal
history that he testified to, I have great concerns about the . . . battery.
I think it causes great questions about where [G.F.] was when all this
was occurring and is certainly very relevant to that. You may have
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had the child with grandma, but you know typically you don’t leave
the child at grandma’s house and go end up in jail and not retrieve
your child. Those are all concerns that I have. What if you had left
the child with someone other than grandma and didn’t return? Those
are all concerns. In addition, I very clearly told you that [G.F.] could
have visitation with Mother, but that you were to be very, very – I told
you that . . . you were to be very vigilant. Do you recall that
conversation? You had to be the one responsible for knowing
[Mother’s] circumstances and what was going on that you couldn’t just
drop [G.F.] off and assume everything was going to be okay and that’s
not what occurred, okay? Certainly, with regard to the ICPC we’re
going to wait on the results of that . . . just because [G.F.’s] a CHINS
doesn’t mean he can’t stay in your home while this is going on. I’m
going to wait and see what the results of the ICPC are before I make
that decision.
Id. at 161-62.
[8] The court later entered an order formalizing the CHINS adjudication and
continuing G.F.’s foster-care placement. In the order, the trial court again
expressed concern about Father’s judgment, as well as his lack of employment.
See Appellant’s App. p. 50-52. Father now appeals.
Discussion and Decision
[9] Father appeals the trial court’s determination that G.F. is a CHINS. When
reviewing a trial court’s determination that a child is in need of services, we do
not reweigh the evidence or judge witness credibility. In re S.D., 2 N.E.3d 1283,
1286-87 (Ind. 2014) (citations omitted), reh’g denied. We consider only the
evidence that supports the trial court’s decision and the reasonable inferences
drawn therefrom. Id. at 1287 (citations omitted).
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[10] In this case, the trial court entered abbreviated findings and conclusions sua
sponte. “As to the issues covered by the findings, we apply the two-tiered
standard of whether the evidence supports the findings, and whether the
findings support the judgment.” Id. (citing Yanoff v. Muncy, 688 N.E.2d 1259,
1262 (Ind. 1997)). We review the remaining issues under the general-judgment
standard, meaning that we will affirm if the judgment can be sustained on any
legal theory supported by the evidence. Id.
[11] A CHINS adjudication under Indiana Code section 31-34-1-1 requires three
elements: the parent’s actions or inactions have seriously endangered the child,
the child’s needs are unmet, and the child’s needs are unlikely to be met
without State coercion. Id. In full, Section 31-34-1-1 provides:
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
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(B) is unlikely to be provided or accepted without the
coercive intervention of the court.3
[12] We conclude that the evidence is sufficient to support the trial court’s
determination that G.F. is a CHINS. In its written order, the trial court
expressed concern about Father’s judgment and his lack of employment. See
Appellant’s App. p. 50-52. Specifically, the court questioned Father’s decision
to leave G.F. in Mother’s care and return to Illinois while Mother was using
drugs, particularly after the court warned Father to be vigilant about G.F.’s
care. As the court also found, Father knew that Mother’s boyfriend was not to
have contact with G.F. until he passed background checks and drug screens,
but Father left G.F. with Mother and Mother’s boyfriend before this occurred.
Moreover, at the hearings, despite evidence that Mother’s boyfriend has a
criminal history and had recently used spice, Father continued to claim that
Mother’s boyfriend was a good influence and should be able to spend time with
G.F.
[13] On appeal, Father argues that he should not be penalized for failing to heed the
trial court’s warning to be vigilant about G.F.’s care because S.S.’s paternity
had not been established when the court said this. See Appellant’s Br. p. 9
3 Father challenges the trial court’s determination regarding Section 31-34-1-1(1) only; he does not challenge
the trial court’s finding that G.F. needs care, treatment, or rehabilitation that he is not receiving and is
unlikely to be provided or accepted without the coercive intervention of the court.
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(“There was a discussion between [Father] and the court at which time [F]ather
was not a party . . . .This court is asked to note that . . . without first
establishing paternity, the [] court was without jurisdiction to enter a parental
participation decree against a father.”). But a parental-participation order is not
at issue here; the trial court merely advised Father in open court to be careful
about allowing G.F. to spend time with Mother in light of what had occurred
with S.S. Father also claims that he had a different understanding of his
responsibilities regarding G.F.’s supervision. See id. at 8-11 (“Father submits
that . . . he was [] left with the impression that he was allowed to send G.F. to
some visitation with [] [M]other without subjecting G.F. to a CHINS
petition.”). This argument is a request to reweigh the evidence, which we will
not do. We conclude that the trial court did not err in adjudicating G.F. a
CHINS.4
Affirmed.
Baker, J. and Riley, J., concur.
4 Father also argues that that the ICPC does not apply to him because he is G.F.’s parent; thus, the trial court
erred in initiating the ICPC process. But Father has waived this argument because the record shows that he
agreed to begin the ICPC process. See Appellant’s App. p. 39 (“[B]y agreement of the parties, Court
ORDERS [TC]DCS to begin an ICPC with the State of Illinois regarding possible placement of [G.F.] in []
Father’s care.”). We therefore do not address this argument.
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