In the Matter of G.B., K.W., and D.C. (Minor Children), Children Alleged to be in Need of Services N.C. (Mother) 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 Jun 08 2020, 8:42 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 ATTORNEY FOR APPELLEE
Isabella Bravo Katherine A. Cornelius
Monroe County Public Defender’s Deputy Attorney General
Office Indianapolis, Indiana
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of G.B., K.W., and June 8, 2020
D.C. (Minor Children), Children Court of Appeals Case No.
Alleged to be in Need of 19A-JC-2435
Services; Appeal from the Monroe Circuit
N.C. (Mother), Court
The Honorable Stephen R. Galvin,
Appellant-Respondent,
Judge
v. Trial Court Cause Nos.
53C07-1905-JC-276
53C07-1905-JC-277
Indiana Department of Child
53C07-1905-JC-278
Services,
Appellee-Petitioner.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020 Page 1 of 12
Statement of the Case
[1] N.C. (“Mother”) appeals the trial court’s adjudication of her three minor
children, G.B., K.W., and D.C. (collectively, “the Children”) as Children in
Need of Services (“CHINS”). Mother raises a single issue for our review,
namely, whether the trial court clearly erred when it adjudicated the Children to
be CHINS.
[2] We affirm.
Facts and Procedural History
[3] Mother is mother to three minor children: G.B., born December 14, 2002;
K.W., born December 16, 2003; and D.C., born January 20, 2011. Mother is
married to No.C., who is stepfather to Mother’s three minor children
(“Stepfather”). Mother has a long history of substance abuse, and her first
contact with the Indiana Department of Child Services (“DCS”) was in 2004,
when Mother agreed to participate in a “Program of Informal Adjustment”
with DCS, which required her to, among other things, consent to drug screens
and undergo a substance abuse assessment. Ex. Vol. 3 at 117. In 2016, a
juvenile court adjudicated D.C. to be a CHINS, and Mother successfully
completed services in 2017.
[4] In May 2018, DCS received a report alleging that Stepfather had physically
abused D.C. In July 2018, DCS received a report that Mother and Stepfather
(collectively “Parents”) were neglecting D.C. and K.W. after Mother was
arrested for stealing groceries from Kroger. And, in August 2018, DCS
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received a report that Parents were neglecting all three Children, and DCS
removed the Children from Parents’ home. DCS filed petitions alleging that the
Children were CHINS, but the juvenile court dismissed those petitions in
November 2018. Parents agreed to participate in an informal adjustment.
[5] In May 2019, when Mother admitted to using methamphetamine on multiple
occasions, DCS filed new petitions alleging that the Children were CHINS.
Following a fact-finding hearing, the court found as follows:
3. [Mother] has a lengthy history of substance abuse and
neglecting her children.
4. [Mother] participated in a Program of Informal Adjustment
for [K.W.] beginning August 11, 2004. Mother and [her then-
husband R.B.] both agreed not to become intoxicated on alcohol,
illegal drugs, or prescription drugs, while caring for the children.
They agreed to obtain a substance abuse assessment and
participate in recommended treatment. They agreed to drug
screens. They did not successfully complete the Informal
Adjustment.
5. As noted in [G.B.]’s Clinical Interview and Assessment, both
[G.B.] and [K.W.] were placed in guardianship with . . .
[Mother]’s cousin from 2006 to 2018.
6. [D.C.], age 5, was detained from his [Mother] on June 20,
2016. . . . On July 28, 2016, [D.C.] was found to be a Child in
Need of Services. . . .
7. A dispositional hearing was also held on September 1, 2016.
[Mother] was ordered to complete a substance abuse assessment
and follow all recommendations, participate in random drug
screens, abstain from the use of drugs and alcohol, participate in
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weekly home-based case management services, and complete a
medication evaluation and follow all recommendations. Similar
recommendations were made for [D.C.’s father] and [Stepfather].
8. [Mother] began Suboxone treatment in October 2016. As
noted in the Review Hearing Order entered December 12, 2016,
[Stepfather] continued to use methamphetamine, hydrocodone,
oxycodone, and THC.
9. By May 2017, [Mother] and [Stepfather] were actively
participating in a Suboxone program and complying with the
dispositional orders. [Mother] was granted unsupervised
parenting time with [D.C.]. The CHINS case was closed on
November 6, 2017.
10. On July 3, 2018, [Mother] was arrested for stealing $750
worth of groceries. [Stepfather] was present in the parking lot
when this occurred. At the time of her arrest, [Mother] became
extremely upset, took a plastic fork, and began to stab her arms.
Law enforcement placed handcuffs on her to stop her from
harming herself. [Mother] then began to slam her head against
the wall. After being placed in a patrol car, [Mother] continued
to slam her head against the Plexiglas in the half-cage area.
[Mother] later reported that she did not remember what had
happened. She stated that she had relapsed and taken Xanax.
She also took a high dose of Lemictal, her depression
medication.
11. The Department of Child Services offered to provide services
to the family through a Program of Informal Adjustment.
[Mother] and [Stepfather] refused to participate voluntarily.
12. On August 15, 2018, petitions were filed alleging that [K.W.]
and [D.C.] were Children in Need of Services.
13. On August 17, 2018, [Mother] threatened to burn down her
home with the children in it rather than have the children
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removed by the Department of Child Services. Following a
hearing in the CHINS case, [Mother] struck [Stepfather] with her
court papers outside the courtroom.
14. The CHINS petitions were dismissed by Judge Frances Hill
on November 20, 2018, after [Mother] and [Stepfather] agreed to
participate in a Program of Informal Adjustment. [G.B.] was
also included in the Informal Adjustment. The Preliminary
Inquiry states that on May 18, 2018, [D.C.] had a cigarette
burn on his arm that [Stepfather] stated was accidentally
inflicted.
15. [K.W.] and [G.B.] were under the care of a guardian until
2018. The first time [Mother] had custody of all three children
was shortly before the signing of [the] Informal Adjustment.
16. Pursuant to the terms of the Informal Adjustment, [Mother]
and [Stepfather] were again offered substance abuse treatment,
random drug screens, home-based counseling, and intensive
family preservation services—including Family Centered
Therapy.
17. [Mother] and [Stepfather] began to participate in a Suboxone
program. [Mother] tested positive for amphetamine and
methamphetamine on December 10, 2018. Thereafter, she
regularly tested positive for her prescription buprenorphine and
THC. [Stepfather] also tested positive for amphetamine and
methamphetamine on December 10 and December 14, 2018.
18. When confronted with the positive drug screens, [Mother]
adamantly denied using. However, when [Stepfather] admitted
to using methamphetamine, [Mother] also admitted [to using
methamphetamine]. Although [Mother] and [Stepfather] both
admitted to relapsing on methamphetamine, both gave different
dates for their drug use. They gave six different dates for
methamphetamine use in November and December. They stated
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that the stress of having the children back in their home caused
them to relapse.
19. [Mother] testified that she did not know what caused her
relapse. However, she testified that she had never had [G.B.]
before and it was too much for her. She testified that [G.B.] had
many explosive days and he was physical with her.
20. [Stepfather] continued to use heroin. On February 20, 2019,
[Mother] and [Stepfather] agreed to a Safety Plan that prohibited
[Stepfather] from being alone with the children. On the same
day, [Stepfather] violated the Safety Plan by leaving the home
with [K.W.] While [Stepfather] and [K.W.] were out of the
home, [Mother] left [D.C.] and [G.B.] alone downstairs while
she remained upstairs.
21. While the children were left alone, [G.B.] sexually molested
[D.C.] When [Stepfather] and [K.W.] returned home, they
found both boys had their pants down. Both boys admitted that
[G.B.] had asked [D.C.] to perform oral sex and he had
complied. [D.C.] reported that [G.B.] had anally penetrated him.
[G.B.] denies this.
22. During a Clinical Interview and Assessment on February 26,
2019, [Mother] admitted that she was aware that [G.B.] had been
watching pornography that included incest, younger children,
and “rough sex.” She described ongoing physical aggression by
[G.B.] against all members of the family, particularly his younger
brother. [G.B.] sent his sister to the hospital after stomping on
her stomach a few years ago. [G.B.] has been diagnosed with
ADHD and disruptive mood dysregulation disorder. He takes
medication for these diagnoses.
23. [Mother] was aware that [D.C.] has slashed tires with knives
when left unsupervised. The school requires that [D.C.] be
escorted to and from school due to behavioral issues. [Mother]
knows that [D.C.] is a high needs child who requires supervision.
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24. [Mother] testified that she was not supervising the children
because she was ill and that the children were only left alone for
15 minutes. The Court does not accept this testimony as truthful.
25. At the hospital, [Mother] and [Stepfather] both stated that
their urine screens would be positive for marijuana. [Mother]
and [Stepfather] have continued to use marijuana. [Mother]
testified that using marijuana is risky for her sobriety.
26. On May 8, 2019, [Mother] participated in an evaluation at
Centerstone, the local mental health center. [Mother] admitted
to an extensive history of substance abuse, including the
intravenous use of methamphetamine and heroin, abuse of
Xanax, and use of opioid medications. She was hospitalized at
Valle Vista for substance abuse treatment in 2016. She was
diagnosed with schizoaffective disorder, bipolar type. She has a
history of manic episodes. As a teen, she suffered auditory
hallucinations that told her to harm herself. She was hospitalized
as a teen. She has a history of suicidal thoughts and attempts,
though none recently. She was also diagnosed with PTSD and
opioid use disorder, severe, in sustained remission; cannabis use
disorder, moderate; and stimulant use disorder, mild.
27. [Mother] had previously participated in a substance abuse
evaluation at Centerstone on September 25, 2018. At the time,
she was diagnosed with schizoaffective disorder, bipolar type,
and polysubstance use disorder, moderate.
28. [Mother] and [Stepfather] continued to test positive for THC
throughout the period of the Informal Adjustment. [K.W.]
regularly tested positive for THC throughout March 2019. On
May 16, 2019, the Program of Informal Adjustment was
extended for an additional three months.
29. In May 2019, [Mother] and [Stepfather] tested positive for
methamphetamine. [Mother] admitted to using
methamphetamine on multiple occasions. She stated that
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[Stepfather] could not stop using because he was in pain from
lupus. She admitted she shoots up methamphetamine. [Mother]
stated that [Stepfather] is a trigger for her drug use.
30. [Mother] testified that [Stepfather] does not have a drug
problem because he has not used methamphetamine since May.
She does not believe his ongoing use of marijuana affects his
sobriety.
31. On May 4, [Stepfather] was arrested at Kohl’s with [K.W.]’s
boyfriend.
32. On May 21, 2019, [Mother] had a large gash in her arm. She
stated that she had flipped a table. [Mother] told her caseworker
that she wanted to die every day.
33. The children were removed from their [Mother] and
[Stepfather] on May 21, 2019.
34. As a result of the molestation, [G.B.] was placed at Gibault
where he is receiving treatment for sexually maladaptive
behavior. [Mother] admits that the children need therapy.
35. [K.W.] became pregnant at age 14. [Mother] told
caseworker Rebecca Geiselman that she assumed [K.W.] was
sexually active. [Mother] stated that she was not aware of the
age of consent for sexual activity. Prior to learning the age of
consent, [Mother] was fine with [K.W.] having a relationship
with an older individual.
36. [Mother] testified that [K.W.] is mature and is a great
mother at age 15. This characterization is unrealistic. [K.W.]’s
baby was born positive for marijuana. The identity of the father
is not known. [K.W.] has a history of self-harming behavior.
***
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39. In light of the ongoing substance abuse by [Mother and
Stepfather], the ongoing neglect of the children by all of their
parents, and the children’s extreme behavioral problems, the
coercive intervention of the court is clearly necessary to ensure
the safety of [G.B.], [K.W.], and [D.C.]
Appellant’s App. Vol. 2 at 35-39. The court then adjudicated the Children to be
CHINS and entered a dispositional order following a hearing. This appeal
ensued.
Discussion and Decision
[6] Mother asserts that the trial court clearly erred when it adjudicated the Children
to be CHINS. As our Supreme Court has explained:
In all CHINS proceedings, the State must prove by a
preponderance of the evidence that a child is a CHINS as defined
by the juvenile code. When reviewing a CHINS adjudication,
we do not reweigh evidence or judge witness credibility and will
reverse a determination only if the decision was clearly
erroneous. A decision is clearly erroneous if the record facts do
not support the findings or if it applies the wrong legal standard
to properly found facts.
V.B. v. Ind. Dep’t of Child Servs., 124 N.E.3d 1201, 1208 (Ind. 2019) (citations
and quotation marks omitted).
[7] DCS alleged that the Children were CHINS pursuant to Indiana Code Section
31-34-1-1, which provides that a child under the age of eighteen is a CHINS
under the following circumstances:
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(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.
As our Supreme Court has explained, “[t]hat final element 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.’” J.B. v. Ind. Dep’t of
Child Servs. (In re S.D.), 2 N.E.3d 1283, 1287 (Ind. 2014) (quoting Lake Cty. Div.
of Fam. & Child. Servs. v. Charlton, 631 N.E.2d 526, 528 (Ind. Ct. App. 1994)).
When considering this requirement, “courts should consider the family’s
condition not just when the case was filed, but also when it is heard.” Gr. J. v.
Ind. Dep’t of Child Servs. (In re D.J.), 68 N.E.3d 574, 580 (Ind. 2017) (quotations
omitted). “Doing so avoids punishing parents for past mistakes when they have
already corrected them.” Id. at 581.
[8] Mother does not challenge the juvenile court’s finding that each of the
Children’s physical or mental condition is seriously endangered. Rather, her
sole contention on appeal is that the intervention of the court is not required to
coerce Mother to provide the care and treatment the Children need. In
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particular, Mother maintains that, while she needed help with the Children
previously, she has been recently “in compliance with services” and, therefore,
“the need for coercive intervention is not ongoing.” Appellant’s Br. at 9, 11.
[9] In support of her contention, Mother cites our Supreme Court’s opinion in In re
D.J., 68 N.E.3d at 574. In that case, DCS filed petitions alleging that the
children were CHINS after one of them almost drowned in a bathtub and DCS
found deplorable conditions in the parents’ home. Services provided to the
parents included as follows: “parental psychological evaluations, drug screens,
parenting curriculum, homemaker services (cleaning the home and keeping it
clean), home-based individual and family therapy, unsupervised visitation for
Father, and supervised visitation for Mother.” Id. at 577. At the time of the
fact-finding hearing on the CHINS petitions, “Parents had completed or were in
the process of completing all services [DCS] required. [DCS] deferred family
homemaker services because Parents had already cleaned the house, and the
court deferred Father’s psychological evaluation for unspecified reasons.” Id.
Still, the juvenile court found that the children were CHINS.
[10] On appeal, our Supreme Court held that the juvenile court erred when it found
that the children were CHINS. In particular, the Court observed that
[t]he trial court’s CHINS order included factual findings that
amply support its conclusion that Parents required coercive
intervention early in the CHINS process. But those findings did
not show that Parents needed ongoing coercive intervention
throughout the process, and they certainly did not show that
Parents needed such intervention by the time of the fact-finding
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hearing months later. To the contrary, the record shows that
Parents eventually cooperated with the Department’s services
and had satisfactorily completed all services (except those
deferred by the Department or the court) by the time of the fact-
finding hearing.
Id. at 581 (emphasis original).
[11] Mother’s reliance on In re D.J. is misplaced, as the facts are readily
distinguishable from this case. Here, as DCS points out, Mother tested positive
for methamphetamine in May 2019, just two months before the final hearing,
and she admitted to smoking marijuana in June 2019. Given Mother’s long
history of substance abuse and mental illness, her continued substance abuse is
compelling evidence that the coercive intervention of the court is necessary to
ensure that the Children receive the care they need. Mother’s attempt to
minimize her continued substance abuse is not well taken. And her contentions
on appeal amount to a request that we reweigh the evidence, which we will not
do. The juvenile court’s detailed findings are supported by the evidence and are
more than adequate to establish that the family’s need for court intervention to
protect the Children is ongoing. In sum, we hold that DCS presented sufficient
evidence to support the juvenile court’s determination that the Children are
CHINS.
[12] Affirmed.
Kirsch, J., and Brown, J., concur.
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