In the Matter of E.B. (Minor Child), Child in Need of Services and R.K. (Mother) v. The Indiana Department of Child Services

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Nov 13 2013, 7:15 am
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:
NOAH L. GAMBILL GREGORY F. ZOELLER
Wagner, Crawford and Gambill Attorney General of Indiana
Terre Haute, Indiana
ROBERT J. HENKE
DAVID E. COREY
Deputies Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF E.B. (Minor Child), )
CHILD IN NEED OF SERVICES )
)
and )
)
R.K. (Mother), )
)
Appellant-Respondent, ) No. 84A01-1303-JC-95
)
vs. )
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE VIGO CIRCUIT COURT
The Honorable David R. Bolk, Judge
The Honorable Daniel W. Kelly, Magistrate
Cause No. 84C01-1208-JC-940

November 13, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
 E.B. was adjudged to be a child in need of services (“CHINS”) by the Vigo Circuit

Court. E.B.’s Mother appeals the adjudication arguing that it is not supported by

sufficient evidence.

We affirm.

Facts and Procedural History

E.B.1 was born on August 6, 2012, at Union Hospital in Terre Haute. R.K., E.B.’s

mother (“Mother”) suffers from a hearing disability, and has other physical and mental

health challenges. At the time of E.B.’s birth, Mother was married to, but separated from,

Leon E. DNA testing later revealed that Emanuel B. (“Father”), not Leon E., was the

biological father of the child.

The day following E.B.’s birth, the Vigo County Department of Child Services

(“DCS”) received a report reflecting concerns of Union Hospital staff that Mother

“appeared more concerned with her needs and her meals rather than focusing on [E.B.’s]

needs” and that Mother seemed uninterested in bonding with the child, feeding the child,

or changing the child’s diapers. 2 The report also indicated that, after Mother was

admitted to the hospital but before she went into labor, Hamilton County DCS had

contacted Union Hospital to notify staff of an ongoing termination proceeding in

Hamilton County involving Mother’s other child, S.E.3 Ex. Vol., DCS Ex. C.

1
At the time of her birth, E.B.’s initials were E.K. After Father established paternity, the child’s name
was changed.
2
Mother asserts that she was never asked to change E.B’s diaper or feed E.B. during the hospital stay
and that she interacted with E.B. appropriately while at the hospital.
3
DCS initiated the CHINS case involving S.E. in Madison County when S.E. was about three months old,
after receiving a report that Mother had taken S.E. to a shelter after a domestic violence incident between
2
 DCS assigned family case manager Marshall Despain (“FCM Despain”) to assess

the allegations contained in the report. FCM Despain contacted the Union Hospital’s

social worker, E.B.’s doctor, and the nurses caring for Mother and E.B. Each person with

whom FCM Despain spoke expressed reservations about Mother’s ability to care for E.B.

These concerns stemmed primarily from Mother’s apparent inability to care for E.B.

without assistance, Mother’s quick temper, Mother’s prioritization of her own needs over

the needs of the child, Mother’s lack of attention to and interaction with the child, and

Mother’s lack of cooperation with hospital staff.

FCM Despain also contacted Jeri Gibson (“FCM Gibson”), the Hamilton County

DCS family case manager assigned to the case of Mother’s other child, S.E. FCM

Gibson reported to FCM Despain that Gibson had observed that Mother showed little

inclination to care for and bond with S.E., that Mother regularly failed to attend

appointments for the mental health services and case management services to which DCS

referred her, and that Mother had made little progress in learning parenting skills. FCM

Gibson also stated that S.E. was three months old when she was removed from Mother’s

care in April 2011 and that, after S.E. was removed, Mother frequently cancelled or

missed supervised visits with S.E. FCM Gibson also indicated that Mother seemed to

constantly suffer from various physical illnesses, which Gibson suspected were

psychosomatic, 4 that Mother believed that people were following her and that her

Mother and Mother’s husband, Leon E. The case was transferred to the Hamilton County DCS in July
2011.
4
At the January 7 hearing, Mother testified that she suffers from a herniated disc, a pinched nerve,
scoliosis, irritable bowel syndrome, high blood pressure, low thyroid, and fibromyalgia. Tr. p. 83.
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apartment was “bugged,” and that Mother had expressed suicidal ideations. Tr. pp. 27-28,

31, 33.

On August 9, 2012, the Vigo County juvenile court entered an order authorizing

DCS to remove three-day-old E.B. E.B. was removed from Mother’s care at the hospital

the same day. On August 13, 2012, DCS filed a CHINS petition and requested that the

court authorize E.B.’s continued detention.

Forty-two visits between Mother and E.B. were scheduled between August 2012

and February 2013. Of those, Mother attended twenty-seven, missing the others because

of the weather or illness. During Mother and Father’s joint visits with E.B., Father took

care of E.B. and Mother assisted him by retrieving items, such as diapers or bottles.

Often, when Mother visited E.B. without Father, she responded to E.B.’s cries only after

prompting by a friend.

On January 7, 2013, after a fact-finding hearing, the juvenile court entered an

order adjudicating E.B. as a CHINS. The order stated, in relevant part:

The child’s physical and mental conditions were seriously endangered due
to the neglect of her parent(s) to supply her with the necessary food,
clothing, shelter, medical care, education or supervision and her
environment being life and health endangering. The child needs care,
treatment, or rehabilitation that the child is not receiving and is unlikely to
be provided to the child or accepted without the coercive intervention of the
Court.

FCM Despain responded to initial report that [Mother] just had a baby at
Union Hospital and due to her mental health issues is unable to care for the
child. FCM Despain spoke to FCM Jeri Gibson of the Hamilton County
office Indiana Department of Child Services, FCM Gibson stated that they
have an open case in Hamilton County with [E.B.’s] older sister born on
January 4, 2011. That [their] office put in numerous services and all of the

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 services have failed. That Hamilton County is pursuing termination of
parental rights.

FCM Despain spoke to Union Hospital Pediatrics staff and Social Worker,
who also relayed serious concerns for [Mother’s] ability to care for
newborn baby. Medical staff relayed concerns of [Mother’s] inability to
care for the newborn due to the mother’s mental capacity and failure to
react to [E.B.’s] needs. Medical staff reported that [Mother] appeared more
concerned with her needs and her meals rather than focusing on [E.B.’s]
needs. Union Hospital medical staff reported similar concerns of [Mother]
regarding the care of [E.B.], with no observations of feeding, changing the
diaper/cleaning, or bonding appropriately with [E.B.].

FCM Jeri Gibson reported that [Mother] is provided services with Hamilton
Center, Inc. in Terre Haute, IN, but is reported to [be] making minimal
progress and focusing only on her relationship goals rather than parenting
and appropriate care giving for child. FCM Jeri Gibson reported that
[Mother] does not work consistently with providers for services regarding
support for her and building appropriate life skills. FCM Jeri Gibson also
relayed that [Mother] has extended history with infrequent services of
outpatient and inpatient mental health providers during her involvement
with their county.

Mother now appeals.5

Discussion and Decision

The Fourteenth Amendment to the United States Constitution gives parents a right

to establish a home and raise their children. In re D.G., 702 N.E.2d 777, 781 (Ind. Ct.

App. 1998). “A parent’s interest in the care, custody, and control of his or her children is

‘perhaps the oldest of the fundamental liberty interests.’” Bester v. Lake County Office

of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v. Granville, 530

U.S. 57, 65 (2000)). This interest, however, must be balanced against the State’s limited

authority to interfere for the protection of the children. See D.G., 702 N.E.2d at 781.

5
Father has not appealed the juvenile court’s order.
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 A court need not wait until a tragedy occurs to intervene. Roark v. Roark, 551

N.E.2d 865, 872 (Ind. Ct. App. 1990). Rather, the court may step in when a child is

endangered by parental action or inaction. Id. As with parental rights terminations, the

purpose of a CHINS adjudication is not to punish the parents, but to protect the children.

In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied.

Indiana Code section 31-34-1-1 provides that a child under eighteen years old is a

CHINS if:

(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.

DCS must prove by a preponderance of the evidence that the child is a CHINS. In re

N.E., 919 N.E.2d 102, 105 (Ind. 2010); In re M.W., 869 N.E.2d 1267, 1270 (Ind. Ct. App.

2007).

Here, the trial court appropriately entered findings of fact and conclusions of law

in its order adjudicating E.B. a CHINS as defined by Indiana Code section 31-34-1-1.

We therefore apply a two-tiered standard of review. First, we determine whether the

evidence supports the findings, and second, whether the findings support the conclusions.

In re V.C., 867 N.E.2d 167, 179 (Ind. Ct. App. 2007). We will reverse only if the

evidence does not support the findings or the findings do not support the judgment. Id.

We consider only the evidence most favorable to the judgment and the reasonable

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inferences flowing therefrom. Id. We will not reweigh the evidence or judge the

credibility of the witnesses. Id.

Mother argues that the evidence is insufficient to support the court’s CHINS

adjudication because “[t]he trial court based its opinion on an impression of [Mother’s]

behavior which is misplaced[.]” Appellant’s Br. at 9. Mother asserts that “[t]here are no

specific findings of fact by the trial court that indicate that [Mother] was negligent or that

the child’s physical condition was ‘seriously endangered.’” Id. at 14. She further claims

that

[t]he trial court speculated as to [Mother’s] ability to parent [E.B.].
[Mother] was not given a chance to show her parenting “skills,” nor was
she aware of any “benchmarks” or that there were any necessary
requirements needed by the hospital for the purpose of allowing [Mother]
to be a mother and take [E.B.] home. Essentially, these requirements
amounted to a parental aptitude test where [Mother] was unaware that she
was being examined.

Id. at 11.

We disagree. Mother’s argument is simply an invitation to reweigh the evidence

and credibility of the witnesses, which this court will not do. The trial court found that

after E.B.’s birth, E.B.’s doctor, social worker, and hospital staff expressed concern about

Mother’s ability to care for E.B.; during Mother and Father’s visits with E.B., Father was

the primary caregiver; Mother required prompting to care for E.B.; Mother regularly

missed scheduled visitations with E.B.; and FCM Despain and Union Hospital’s social

worker both concluded that Mother could not adequately care for E.B. Furthermore,

Mother exhibited many of these same behaviors with her other child, S.E. This evidence

supports the trial court’s conclusion that E.B.’s physical and mental well-being are

7
seriously endangered and that she needs care and treatment that she is not receiving from

Mother. Under these facts and circumstances, we conclude that DCS proved by

preponderance of the evidence that E.B. is a CHINS.

Conclusion

For all of these reasons, we conclude that the trial court’s CHINS adjudication is

supported by sufficient evidence.

Affirmed.

NAJAM, J., and BROWN, J., concur.

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