In re the Matter of W.S. (Minor Child), P.S. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 18 2019, 9:29 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle Curtis T. Hill, Jr.
Thomasson, Thomasson, Long & Attorney General of Indiana
Guthrie, P.C.
Katherine A. Cornelius
Columbus, Indiana Robert J. Henke
Deputy Attorneys General
Indianapolis
IN THE
COURT OF APPEALS OF INDIANA
In re the Matter of W.S. (Minor December 18, 2019
Child), Court of Appeals Case No.
19A-JC-963
P.S. (Father),
Appeal from the Bartholomew
Appellant-Respondent, Circuit Court
v. The Honorable Kelly Benjamin,
Judge
Indiana Department of Child The Honorable Heather Mollo,
Services, Magistrate
Appellee-Petitioner. Trial Court Cause No.
03C01-1801-JC-185
Mathias, Judge.
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[1] P.S. (“Father”) appeals the Bartholomew Circuit Court’s adjudication of his
son, W.S. (“Child”), as a Child in Need of Services (“CHINS”).1 Father argues
that the Bartholomew County Department of Child Services (“DCS”) failed to
prove by a preponderance of the evidence that Child is a CHINS and that no
coercive intervention by the court was warranted. Finding no error on the part
of the trial court, we affirm.
Facts & Procedural History
[2] Child was born to Father and Mother on December 8, 2017, at Columbus
Regional Hospital (“CRH”). Tr. pp. 6–7. Child was diagnosed at birth with a
significant cleft palate and cleft lip that caused immediate concern about his
ability to breathe and eat. Tr. p. 52. The palate—the roof of the mouth—
separates the mouth from the sinuses and helps separate food and saliva from
the airway. Id. A cleft palate causes the danger of aspiration, when foreign
objects such as foods or liquids are inhaled into the airway. Tr. p. 62. Babies
with cleft lips struggle to make a seal around a bottle in order to suck. Tr. p. 52.
For these reasons, medical staff at CRH kept Child hospitalized for three weeks
after his birth. Tr. p. 8. During this time, medical staff endeavored to determine
the most effective way to feed Child. Tr. pp. 53–54. They used orogastric and
nasogastric intubation (respectively, “OG” and “NG”) and a specially
1
A.S. (“Mother”) did not file an Appellant’s Brief, and counsel did not file an appearance on her behalf.
Pursuant to Indiana Appellant Rule 17(A), however, a party of record in the trial court shall be a party on
appeal.
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engineered bottle. Tr. p. 53. Even experienced CRH nurses, however, struggled
to use the bottle to properly feed Child. Tr. p. 53. Family physician Dr.
Amanda Dornfeld (“Dr. Dornfeld”) explained about the tube feeding method:
[A]t first we used what’s called an OG tube, so we put a tube
from his mouth into his stomach, and then once we were sure
that both sinuses were patent, we switched a couple of days later
to an NG tube. . . [W]e were concerned, you know, about
sending [Child] home with an NG tube [because] NG tubes can
easily come out, and so if it comes out, then you have to put it
back in. And if you have to put it back in, you have to
understand how to do that, and you have to be sure it’s in the
right place, and you have to be sure you have clean and available
medical tubing and medical supplies. So after really working with
it, we felt we probably didn’t have the resources [at CRH] to
teach parents how to take care of this special feeding[.]
Tr. pp. 53–54.
[3] Eventually, it was decided that Child should be transferred to Riley Children’s
Hospital (“Riley”) where cleft palate specialists at the Cleft and Craniofacial
Clinic could provide education to Child’s parents regarding tube feeding. Tr. p.
54. Parents were trained in and passed “parent care,” which included
verification that both Father and Mother could “place, pull, test, and feed”
using an NG tube, and Child was discharged from Riley on December 21,
2017. Tr. pp. 34, 39. Child’s discharge instructions were that he was to be fed
by NG tube every three hours, eight times a day. Tr. pp. 10, 42. Riley medical
staff also explained to parents at the time of discharge that Child would need at
least two surgeries to repair his cleft lip and palate, but that the surgeries would
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occur only when Child reached an adequate weight. Tr. p. 41. To that end,
Child would see a local pediatrician to monitor his weight gain, and the Riley
Cleft and Craniofacial Clinic would track Child’s weight and progress prior to
surgery. Id.
[4] Child arrived home after discharge from Riley on a Thursday; parents attended
a follow-up appointment with Child at CRH on Friday, December 22. Tr. p. 57.
The next appointment, four days later, was cancelled by parents and
rescheduled for the next day, but parents did not bring Child to that rescheduled
appointment. Tr. p. 58. The appointment was again rescheduled, and parents
again did not show. Id. Concerned, Dr. Dornfeld at CRH contacted Riley:
So at that point, I called Riley, because I knew they had an
appointment with Riley on Monday [January 1, 2018], with the
cleft palate clinic, and I wanted them to know if the family came,
please call us [at CRH], because we wanted to get him back in
our system. And I wanted them to know that we had not seen
him for a week and we were concerned[.]
Tr. p. 58.
[5] On December 29, 2017, DCS received a report of potential medical neglect
based on the cancelled, rescheduled, and missed appointments. Tr. p. 25. Child
was not present at the Monday, January 1, 2018, appointment at Riley. Id. at
26. He was also not present at a rescheduled appointment at Riley on January
8, 2018. Id. DCS then received an additional report of medical neglect based on
the missed January 8 appointment. Id. On January 9 and January 11, a DCS
Family Case Manager (“FCM”) spoke to Mother at Child’s home. Tr. pp. 27–
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28. Mother explained Child was being fed using a bottle because they had run
out of NG feeding tubes. Tr. p. 28. At the second home visit, a DCS supervisor
scheduled a same-day appointment with Child’s primary care physician, Dr.
Dornfeld, and the FCM accompanied Mother and Child to that appointment.
Tr. p. 29.
[6] January 11 was the first time Child had received medical care since December
22, 2017, the day after he was discharged from Riley. Child was diagnosed with
failure to thrive, found to be dangerously underweight, and suffering from
severe diaper rash. Tr. pp. 59–60. Dr. Dornfeld admitted Child to CRH at that
time, and Child was removed from the care of his parents. Tr. pp. 29–30. When
the DCS FCM read parents their rights, Father reacted with confusion and
stated, “[D]o what you have to do, it’s not like I see him anyway.” Tr. p. 30.
[7] Child has been in the care of placement Serina Roberts (“Roberts”) since
January 15, 2018. Tr. p. 78. A CHINS fact-finding hearing was held on March
12, 2018. At the hearing, Roberts testified that Child had had six or seven
medical appointments in the two months since he had been placed in her care.
Id. Mother attended all of the pediatrician appointments. Id. at 79. Parents had
missed only one appointment at Riley. Id. Parents had not fed Child during any
of these appointments, and there had been no supervised visits between Child
and parents. Id. at 78. Roberts noted that Child’s surgery was coming up on
Thursday, March 15, 2018, and that post-op appointments would be “pretty
much back-to-back after that, with follow-ups.” Id. After testimony at the fact-
finding hearing, the trial court adjudicated Child a CHINS and set a
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dispositional hearing for April 10, 2018. Tr. p. 94. The court explained its
reasoning:
I still think the coercive intervention of the Court is needed, in
particular with this young, with this child having a very
important surgery coming up on Thursday, and the expectations
that the follow through and the appointments will be very,
absolutely just as critical for his well being and for his, for his
very life.
Tr. p. 95.
[8] A dispositional hearing was held on April 10, 2018, and a fact-finding order
was issued on July 10, 2018. Appellant’s App. pp. 6–7. The court’s
dispositional order directing services for the family and continuing wardship of
Child with DCS was issued on April 5, 2019. Appellant’s App. p. 9. Father’s
timely notice of appeal was filed on April 29. Appellant’s App. p. 10.
Discussion & Decision
[9] The Fourteenth Amendment to the United States Constitution protects the
fundamental right of a parent to establish a home and raise a child. Bester v. Lake
Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Thus, to be
adjudicated a CHINS, a child must be “seriously impaired or endangered ‘as a
result of the inability, refusal, or neglect of the child’s parent’ to provide
necessary care.” S.K. v. Ind. Dep’t of Child Servs., 57 N.E.3d 878, 883 (Ind. Ct.
App. 2016). The purpose of CHINS proceedings is to protect the child, not to
punish the parent. In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). Furthermore, a
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CHINS adjudication reflects the status of a child and does not establish the
culpability of a particular parent. Id. at 105. The State of Indiana is authorized
under its power of parens patrie to intervene when necessary to protect a child. In
re V.H., 967 N.E.2d 1066, 1072 (Ind. Ct. App. 2012). “The intrusion of a
CHINS judgment. . . must be reserved for families who cannot meet [the child’s]
needs without coercion–not those who merely have difficulty doing so.” In re
S.D., 2 N.E.3d 1283, 1285 (Ind. 2014).
[10] CHINS proceedings are civil in nature, and DCS must prove each element by a
preponderance of the evidence. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).
In reviewing the trial court’s decision, we consider only the evidence that
supports the trial court’s decision and all reasonable inferences drawn
therefrom; we reverse only upon a showing that the trial court clearly erred and
will not reweigh evidence or judge witness credibility. Id. A decision is clearly
erroneous if the evidence does not support the trial court’s findings or if the trial
court applied an incorrect legal standard. In re D.J., 68 N.E.3d 574, 578 (Ind.
2017).
[11] Where the trial court makes findings of fact and conclusions of law in support
of its determination that a child is a CHINS, we apply a two-tiered standard of
review. In re S.D., 2 N.E.3d at 1287. First, we consider whether the evidence
supports the findings, and second, we consider whether the findings support the
judgment. Id.
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[12] Here, the juvenile court found Child to be a CHINS pursuant to Indiana Code
section 31-34-1-1. Father argues on appeal that DCS failed to prove by a
preponderance of the evidence that Child’s physical or mental condition was
seriously impaired or endangered as a result of Father’s inability, refusal, or
neglect to supply Child with the necessary food, clothing, shelter, medical care,
education, or supervision and that Father could not provide Child with the
needed care without the coercive intervention of the court. Appellant’s Br. at 4.
[13] Father challenges whether the evidence established that Child’s poor physical
condition had been caused by improper feeding by Father. Appellant’s Br. at
11. Specifically, Father disputes the trial court’s findings that the discharge
instructions provided to Father by Riley staff instructed Father to feed Child
only by NG tube. Id. The Riley discharge nurse testified, however, that the
instructions provided specified that Child should be fed only by NG tube. Tr. p.
45. Father’s argument relies on the fact that staff at CRH initially instructed
him and Mother to feed Child using both NG tube and bottle. Appellant’s Br. at
12. Father did not object to Mother feeding Child exclusively by bottle. Tr. pp.
10, 82. Father also did not recognize that Child was not receiving sufficient
nutrition despite being fed by bottle. Father did not assist in Mother’s effort to
obtain feeding tubes. At the time of Child’s removal, Child was one month old,
yet he had not gained weight—in fact, he had lost weight—and he was
suspected of being malnourished. The trial court did not err in concluding that
Child’s physical condition was seriously endangered as a result of Father’s
neglect to supply Child with necessary food.
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[14] Also at the time of Child’s removal, Child had missed three appointments with
his local pediatrician and one follow-up appointment with the specialists at
Riley. Tr. pp. 26–27. Father challenges whether this evidence supports the trial
court’s determination that Father’s inability, refusal, or neglect seriously
impaired or seriously endangered Child’s physical condition. Appellant’s Br. at
12. Father explained that he understood the importance of follow-up
appointments, but that his employment schedule had prevented him from
ensuring that Child attended scheduled medical appointments. Tr. p. 83. Father
testified that he did not take advantage of Medicaid transportation because he
preferred to take Child to appointments himself. Tr. p. 88. The trial court heard
testimony from Dr. Dornfield, explaining in reference to Child’s condition
when Child was belatedly seen by a doctor, that “if [Child] hadn’t been found
when he was found, [] he likely could have died.” Tr. p. 69. Child’s physical
condition at the time of his removal by DCS was severe enough that he was
admitted to a hospital that day. Tr. p. 29. Father did not make use of several
resources provided at the time of Child’s discharge from Riley specifically
intended to aid Mother and Father in attending medical appointments: free
Medicaid transportation, gas cards, and work excuses. Tr. p. 35. The trial court
did not err in concluding that Child’s physical condition was seriously
endangered as a result of Father’s inability, refusal or neglect to ensure Child
received medical care.
[15] Finally, Father argues that the trial court erred in finding that the coercive
intervention of the court was necessary because Father testified that he was
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“open to cooperating with and agreeable to the services recommended by
DCS,” and because both parents “wanted to do whatever was necessary for
Child to return home.” Appellant’s Br. p. 12. Father observes that we consider
a family’s condition not just when the case was filed, but also when it is heard,
and that “doing so avoids punishing parents for past mistakes when they have
already [been corrected].” In re D.J., 68 N.E.3d at 580–81. Again, we stress that
a CHINS determination is for the purpose of protecting a child, not punishing a
parent. The trial court heard testimony from medical professionals about
Child’s complex and fragile physical condition, and about Father’s failure to
properly understand and address Child’s condition. Dr. Dornfield testified that
she had “real concern that [Child] could have malnourishment, failure to thrive,
and even die from aspiration if he is returned to [to parents’ care].” Tr. p. 69. In
his appeal, Father asks us to reweigh the evidence before the trial court, which
we decline to do. The CHINS statute does not require juvenile courts to “wait
until tragedy occurs to intervene.” Roark v. Roark, 551 N.E.2d 865, 872 (Ind. Ct.
App. 1990).
Conclusion
[16] The trial court’s focus was appropriately on whether Father needed to be
coerced into providing or accepting necessary treatment for Child. The trial
court did not err in determining that Father did not demonstrate an ability to
understand the severity of Child’s physical needs nor an ability to consistently
accept and follow through with needed medical care. In this case, the evidence
clearly supports the trial court’s factual findings, and the findings in turn
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support the court’s adjudication of Child as a CHINS. DCS proved by a
preponderance of the evidence that Child’s needs were unlikely to be provided
for without the coercive intervention of the court. Accordingly, we affirm the
trial court’s adjudication of Child as a CHINS.
[17] Affirmed.
Robb, J., and Pyle, J., concur.
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