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

MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 09 2017, 7:27 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
Megan Shipley Curtis T. Hill, Jr.
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: March 9, 2017
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 Roseanne Ang,
v. Magistrate
Trial Court Cause No.
The Indiana Department of Child 49D09-1511-JC-3428
Services,
Appellee-Petitioner.
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Robb, Judge.
[1] R.G. (“Mother”) petitions for rehearing of this court’s opinion in In re V.G., No.
49A02-1605-JC-1071 (Ind. Ct. App. Dec. 28, 2016). In that opinion, we
affirmed the juvenile court’s determination V.G. is a child in need of services
(“CHINS”). Our decision relied upon Mother’s inability to provide V.G. with
his basic needs, Mother’s own adjudication as a CHINS, Mother’s unstable and
inconsistent housing situation, and the fact Mother left V.G. with L.C.
(“Father”) and his paternal grandmother (“Paternal Grandmother”), neither of
whom have established a guardianship, nor has Father established paternity.
We grant rehearing to address Mother’s claim, but reaffirm our opinion in all
respects.
[2] On rehearing, Mother argues our opinion “relies on the fact that Father and
Paternal Grandmother had not established legal guardianship or paternity[,]”
despite the fact this court held in In re C.S., 863 N.E.2d 413, 419 (Ind. Ct. App.
2007), abrogated in part by In re N.E., 919 N.E.2d 102 (Ind. 2010), that failure to
establish paternity was not evidence of neglect. Petition for Rehearing at 7.
Initially, we note our decision in this case did not rely upon Father’s and
Paternal Grandmother’s lack of guardianship and/or paternity; rather, that was
one of numerous factors considered in affirming the juvenile court’s
adjudication of V.G. as a CHINS. Moreover, we disagree with Mother’s
interpretation of In re C.S. and its application to this case.
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[3] In In re C.S., C.S. was born to unwed parents, Loretta Savage and Christopher
Montgomery. Montgomery was not present at C.S.’s birth, although he did
visit the hospital several times. Savage did not name Montgomery as C.S.’s
father on the birth certificate and Montgomery did not sign a paternity affidavit
at the hospital. Following her birth, C.S. tested positive for benzodiazepines
prompting the hospital to contact the Marion County Department of Child
Services (“DCS”). Based on C.S.’s positive test and Savage’s admission to drug
use during her pregnancy, DCS filed a petition alleging C.S. to be a CHINS.
An initial hearing was held that same day at which Savage admitted the
allegations of the petition and C.S. was placed in foster care. Montgomery did
not appear at the hearing. Following a fact-finding hearing at which
Montgomery did appear, the juvenile court adjudicated C.S. a CHINS.
[4] On appeal, DCS attempted to justify the CHINS adjudication by relying on
Montgomery’s failure to establish paternity. We noted Montgomery had
previously indicated his desire to establish paternity and concluded his “failure
to establish paternity before the fact-finding hearing was not evidence of neglect
on his part that would seriously impair or endanger C.S.” Id. at 419 (internal
quotation omitted).
[5] In re C.S. and the present case are distinguishable. First, In re C.S. does not
establish as a matter of law that a juvenile court can never consider a lack of
paternity or guardianship in a CHINS adjudication, only that DCS could not
rely solely on that fact to support C.S.’s CHINS adjudication. See id. Second, a
failure to establish paternity could not be evidence of serious impairment or
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endangerment as C.S. never lived with Montgomery and was placed in foster
care since birth. Here, V.G. has lived with Father and Paternal Grandmother
since shortly after his birth despite neither of them having a guardianship and
Father never establishing paternity.1 In this case, Father’s failure to establish
paternity does directly implicate V.G.’s well-being because it demonstrates a
failure to assure V.G. can be provided with any medical care he needs.
[6] For the reasons stated above, we reaffirm our decision in all respects.
Kirsch, J., and Barnes, J., concur.
1
DCS’ original concerns cited in their petition were that Father and Paternal Grandmother lacked any form
of legal custody and therefore could not meet V.G.’s medical needs.
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