In the Matter of D.P. & C.H., Children Alleged to be Children in Need of Services, T.P. Mother v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Mar 30 2015, 9:07 am
Pursuant to Ind. Appellate Rule 65(D), this
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
Deborah K. Smith Gregory F. Zoeller
Sugar Creek Law Attorney General of Indiana
Thorntown, Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of D.P. & C.H., March 30, 2015
Children Alleged To Be Children Court of Appeals Case No.
in Need of Services, 06A01-1408-JC-339
Appeal from the Boone Circuit
T.P., Mother, Court
The Honorable J. Jeffrey Edens,
Appellant-Respondent, Judge
v. The Honorable Sally E. Berish,
Magistrate

The Indiana Department of Cause Nos.: 06C01-1312-JC-380;
06C01-1312-JC-381
Child Services,
Appellee-Petitioner.

Brown, Judge.

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[1] T.P. (“Mother”) appeals from the trial court’s order determining that D.P. and

C.H. (the “Children”) are children in need of services (“CHINS”).1 Mother raises

one issue, which we restate as whether sufficient evidence supports the court’s

determination that the Children are CHINS. We affirm.

Facts and Procedural History

[2] Mother is the mother of D.P., born in August 2000, and C.H., born in November

2007. J.H. (“Father J.H.”) is the biological father of D.P.2 On December 28, 2013,

the Boone County Sheriff’s Department received a report of a domestic disturbance

at the home of Mother, Father J.H., and the Children, and Deputy Jeremy

McClaine responded to the report. Father J.H. answered the door, acknowledged

the domestic disturbance, and informed Deputy McClaine he had walked into one

of the Children’s rooms where Mother was using heroin and had tried to grab it

from her and when doing so got her hand. An unused needle was found at the foot

of the bed and a second unused needle was found in Mother’s coat in another

bedroom. Deputy McClaine observed that the speech of Mother and Father J.H.

was slurred, that their balance was impaired, and that Father continued to drink

while police were at the home. Mother went to the hospital and Father J.H. was

arrested for domestic battery. Law enforcement placed the Children next door at

the home of Father J.H.’s parents. On December 29, 2013, DCS family case

1
D.P.’s father and C.H.’s father do not participate in this appeal.
2
A no contact order is in place between Mother and C.H.’s father, and C.H. has no real contact with his
father.

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 manager Chelsea Mikesell (“FCM Mikesell”) initiated an investigation and visited

the home and spoke with Mother.

[3] On January 2, 2014, the Indiana Department of Child Services (“DCS”) filed

requests to file petitions (“CHINS Petitions”) alleging that each of the Children

were CHINS, to which the CHINS Petitions were attached. That same day, the

court granted DCS’s motions, and the CHINS Petitions were filed. DCS alleged in

the CHINS Petitions that it received a report on December 28, 2013, that the

Children were the victims of neglect, that the report stated that Father J.H. grabbed

and squeezed Mother’s hand, possibly breaking her hand, that Father J.H. stated

he did this because Mother was using heroin in front of C.H., that Mother and

Father J.H. were intoxicated, and that police found two unused syringes in the

home. The CHINS Petitions further alleged that, during her investigation, FCM

Mikesell learned that Father J.H. had been arrested and charged with domestic

battery as a class C felony, that Mother had been taken to the hospital, and that

Mother has a history of drug abuse and has a current addiction to heroin.

[4] On January 22, 2014, a family team meeting was held at which Mother, Father

J.H., and ongoing DCS family case manager Terrian Brady (“FCM Brady”) were

present. On March 17, 2014, the court held a fact-finding hearing on the CHINS

Petitions at which the court heard testimony from Deputy McClaine, FCM

Mikesell, and FCM Brady, and the court took the matter under advisement.

[5] On May 15, 2014, the trial court entered an order adjudicating the Children to be

CHINS which included fifty-three findings of fact. The court found that police had

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 been called to the home of Mother, Father J.H., and the Children in response to a

report of domestic violence; that Father J.H. answered the door and acknowledged

the domestic disturbance; that Father J.H. informed Deputy McClaine he had

walked into the six-year-old child’s room where Mother was using heroin, that he

had “tried to grab it from her and when doing so got her hand,” and that Mother

assaulted him; and that the Children were present in the home during the

altercation and the six-year-old child was in the same bedroom as the adults.

Appellant’s Appendix at 50.

[6] The court also found that an unused needle was found at the foot of the bed in the

room where the incident between Mother and Father J.H. occurred, that Mother

admitted to Deputy McClaine that she brought the needle into the home, and that

a second unused needle was found in Mother’s coat in another bedroom. The

court found that Deputy McClaine observed that Mother’s eyes were bloodshot,

her speech was slurred, her balance was impaired, and her hand was red and

swollen; and he observed that Father J.H.’s speech was slurred, his balance was

impaired, and he continued to drink while police were at the home. The court

noted that there were beer cans in the six year old child’s room and around the

house, that law enforcement placed the Children next door at the home of the

parents of Father J.H, and that on December 29, 2013, DCS received a report that

Mother left the hospital against medical advice.

[7] The court further found that FCM Mikesell initiated an investigation on December

29, 2013, and, at the time of the interview, found the physical condition of the

Children’s home satisfactory with food in the household. The court found that

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 Mother admitted she has a heroin addiction and also used marijuana and took

painkillers and that she stated that she was unable to afford in-patient treatment as

she has no insurance and could not qualify for Medicaid. The court found in

Finding 32 that, when FCM Mikesell met the Children, they were appropriately

dressed, and that she established that their basic health and medical needs were

being met.

[8] Additionally, the court found that Father J.H. admitted to drinking five or six beers

at the time of the incident and that he submitted to a drug screen and admitted it

might be positive for marijuana as he had smoked with his buddies at work. The

court found that the Children were currently placed with the parents of Father J.H.

and that Mother and Father J.H. were exercising daily visitation supervised by

J.H.’s parents.

[9] In Finding 44, the court found that at the point of the family team meeting on

January 22, 2014, Mother had not pursued a referral made to Harbor Lights or any

in-patient drug treatment as she had requested of FCM Mikesell. In Finding 45,

the court found that Mother again requested assistance from DCS and that DCS

made a referral for Mother to Aspire. In Finding 46, the court found that, as of the

date of fact finding, Mother was attending Aspire through the DCS referral for

substance abuse counseling and individual and group therapy and that DCS was

paying for this service. The court further found that Mother was attending New

Life Recovery, which was not a DCS referral, that Father J.H. requested no

services, and that FCM Brady recommends Father J.H. complete the program

Fatherhood Engagement.

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[10] The court further found that Mother was charged with unlawful possession of a

syringe, a class D felony, on February 11, 2014, and that, at the time of fact

finding, Father J.H.’s domestic battery charges remained pending jury trial. The

court also found that DCS referred the Children to have assessments at Aspire and

that the assessments recommended home-based counseling for the Children to

address witnessing domestic violence and the separation from their parents.

[11] In its conclusions, the court determined that DCS proved by a preponderance of

the evidence that the Children were CHINS in that their physical or mental

condition was seriously impaired or endangered as a result of the inability, refusal

or neglect of their parent, guardian or custodian to provide them with necessary

supervision, and that they need care, treatment, or rehabilitation that is unlikely to

be provided or accepted without the coercive intervention of the court. The court

concluded that the Children are CHINS in part because on December 28, 2013,

they were in the care of Mother and Father J.H. who were both intoxicated and

involved in a domestic violence incident in front of the Children; Mother has an

admitted heroin addiction; Father J.H., believing he was witnessing Mother’s use

of heroin, attempted to stop her with inappropriate violence, and the results were

Mother being transported to the emergency room and Father J.H.’s arrest; and that

subsequently both Mother and Father J.H. admitted to using illegal drugs. The

court also concluded that the coercive intervention of the court is necessary

because Mother admitted to a heroin addiction and requested assistance in

obtaining in-patient treatment as she could not afford it on her own; DCS provided

Mother with a referral for inpatient services but she did not follow through on that

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 referral or any in-patient treatment; Father J.H. was arrested for domestic battery

on Mother in front of the Children and thereafter admitted to marijuana use; DCS

was unaware of any services Father J.H. was involved in, or if the issue of

domestic violence had been addressed; and that neither Mother nor Father J.H.

had provided a plan to arrange for services for the Children to address the domestic

violence they witnessed. The court entered judgment that the Children were

CHINS.

[12] Following a dispositional hearing, the court entered dispositional orders on July

25, 2014 for the Children which granted wardship to DCS and ordered that the

Children continue to be placed with the parents of Father J.H. and receive home-

based counseling and visitation with Mother and Father J.H. The dispositional

order for D.P. also provided that Father J.H. would participate in a program called

Fatherhood Engagement, and the dispositional order for C.H. provided that C.H.’s

father was to establish paternity and ordered that a body attachment issue against

him.

[13] Mother filed a motion to correct error and argued in part that there was no

evidence to show DCS made a referral to Harbor Lights and that the testimony

was that FCM Mikesell contacted Harbor Lights and left a message. Mother

further argued in part that the evidence presented was that Mother was already

involved with Aspire at the team meeting on January 22, 2014, and that FCM

Brady testified she was not sure how Mother initiated services, that when she

received the file there was a referral, and that there was no indication that Mother

requested a referral. Mother also asserted that, at the dispositional hearing, she

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 had requested that any requirements pertaining to C.H.’s father be removed from

the dispositional order.

[14] On July 31, 2014, the trial court entered an order on Mother’s motion to correct

error and amended Findings 44 through 46 of the May 15, 2014 order.

Specifically, the court amended Finding 44 to state that, at the point of the family

team meeting, Mother had not pursued the Harbor Lights referral and that Mother

was attending Aspire on an out-patient basis. The court also amended Finding 45

to state that Mother again requested assistance from DCS during the family team

meeting, and Finding 46 to state that, as of the date of the fact finding, Mother was

attending Aspire for substance abuse counseling and individual and group therapy

and that DCS was paying for this service. The court found no error in C.H.’s

dispositional order regarding C.H.’s father.

Discussion

[15] The issue is whether sufficient evidence supports the trial court’s determination

that the Children were CHINS. When we review the sufficiency of evidence, we

consider only the evidence and reasonable inferences therefrom that are most

favorable to the judgment. In re A.H., 913 N.E.2d 303, 305 (Ind. Ct. App. 2009).

We neither reweigh the evidence nor reassess the credibility of the witnesses. Id.

DCS was required to prove by a preponderance of the evidence that the Children

were CHINS. See id. When a court’s orders contain specific findings of fact and

conclusions of law, we engage in a two-tiered review. Id. First, we determine

whether the evidence supports the findings. Id. Then, we determine whether the

findings support the judgment. Id. We reverse the trial court’s judgment only if it
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 is clearly erroneous. Id. A judgment is clearly erroneous if it is unsupported by the

findings and conclusions. Id. When deciding whether the findings are clearly

erroneous, we consider only the evidence and reasonable inferences therefrom that

support the judgment. Id.

[16] Mother contends that the court’s findings do not support the judgment that the

Children’s physical or mental conditions were seriously impaired or endangered as

a result of inability, refusal, or neglect of the parents. She argues the Children were

well-fed and well-clothed, their physical needs were being met, they were receiving

counseling regarding their witnessing domestic violence and their separation

issues, and there is no evidence their parents were not cooperating with this course

of action. In support, Mother points to the testimony of FCM Brady that to the

best of his knowledge the Children attend school regularly and are doing

appropriately in school, that D.P. has braces and sees an orthodontist frequently

and wears glasses and sees an ophthalmologist, and that C.H. goes to the dentist.

Mother points to Finding 23 of the court’s order that, at the time of her interview,

FCM Mikesell found the physical condition of the Children’s home satisfactory,

with food in the household; notes that the interview occurred on December 29,

2013, one day after the call to police; and observes that Finding 32 of the court’s

order provided that, when FCM Mikesell met the Children, they were

appropriately dressed and that he established that their basic health and medical

needs were being met.

[17] Mother further contends that the evidence does not support the conclusion that the

coercive intervention of the court is necessary to compel the needs of the Children

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 being met. She points to the evidence that she was attending New Life Recovery

on her own and that DCS did not facilitate in her attending those meetings; that,

although she initially discussed in-patient therapy, other than a call to Harbor

Lights, there was no direct assistance or referral from DCS to initiate the in-patient

treatment; that she ultimately chose out-patient treatment at Aspire as an

alternative; and that the July 25, 2014 dispositional decree did not specifically

require her to go in-patient for her drug treatment. She contends that the evidence

is insufficient to prove she was refusing to participate in treatment absent the

coercive intervention of the court, and that she was not only attending Aspire, but

was voluntarily attending New Life Recovery, and that none of the State’s actions

compelled her attendance.

[18] DCS maintains that the evidence supports the trial court’s conclusion that the

Children were CHINS and notes that Mother does not specifically challenge any of

the court’s factual findings, that the court’s unchallenged findings support its

conclusions and judgment, and that therefore the court’s order adjudicating the

Children as CHINS is not clearly erroneous. DCS asserts that Mother’s arguments

are a request for this court to reweigh the evidence and that the court did not err in

concluding that the Children had a CHINS condition based on the domestic

violence which directly resulted from Mother’s untreated substance addictions.

DCS argues that the Children were not removed based on concerns that they were

not receiving food, clothing, shelter or medical care, and that, rather, the Children

were removed after Mother and Father J.H. engaged in an altercation that resulted

because Father J.H. intervened when he believed Mother was trying to use heroin.

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 DCS notes that Mother admitted she used heroin, valium, and marijuana the day

before the altercation and took a pain pill the day of the altercation, and that she

admitted she needed assistance in addressing her addiction and expressed her belief

that in-patient treatment would be her best option but that she did not have the

means to obtain the help she needed. DCS argues that domestic violence was a

very real issue in this case and that Mother admitted her drug use was causing

Father J.H. and her to fight.

[19] DCS further contends that the court’s coercive intervention was necessary, noting

that FCM Mikesell contacted Harbor Lights and left a message, left it up to Mother

to follow up the next day to see if the facility had any openings, and Mother did

not do so; that Mother again requested assistance at the team meeting; and that,

although Mother had started attending meetings at New Life Recovery, FCM

Brady was unfamiliar with the program and thus it was unclear whether such

treatment would properly address her needs. DCS maintains that, without the

court’s intervention, the Children will be placed at additional risk of repeated

trauma and removals.

[20] Ind. Code § 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:

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 (A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.

The court need not wait until a tragedy occurs before intervening; parental action

or inaction is sufficient to adjudicate a child as a CHINS. In re A.H., 913 N.E.2d at

306. The purpose of a CHINS adjudication is to protect the subject child, not to

punish the child’s parents. Id.

[21] We note that Mother appears to limit her argument to whether the findings of the

trial court support the court’s judgment and does not assert that the court’s findings

were not based upon the evidence presented at the fact-finding hearing. Also, to

the extent Mother emphasizes certain findings of the trial court, we will not

reweigh the evidence and will consider only the evidence and reasonable inferences

most favorable to the judgment. See In re A.H., 913 N.E.2d at 305.

[22] With respect to the trial court’s conclusion that the Children’s physical or mental

condition is seriously impaired or seriously endangered as a result of the actions or

inactions of Mother and Father J.H., the court found that Mother and Father J.H.

were both intoxicated and involved in a domestic violence incident in front of the

Children, that Mother has an admitted heroin addiction, and that as a result of the

incident Mother was transported to the emergency room and Father J.H. was

arrested. In its May 15, 2014 order, the court found that police had been called to

the home on December 28, 2013 in response to a report of domestic violence, that

Father J.H. acknowledged the domestic disturbance and reported that he had tried

to grab heroin from Mother and “when doing so got her hand” and that Mother

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 assaulted him, and that the Children were present in the home during the

altercation. Appellant’s Appendix at 50.

[23] The court found that FCM Mikesell found the physical condition of the Children’s

home satisfactory with food in the household, the Children were appropriately

dressed, and their basic health and medical needs were being met. However, we

decline to place more importance than the trial court did on these findings, or on

the other testimony to which Mother refers regarding the Children’s school

performance or eye or dental care, in relation to the court’s other findings related

to the domestic altercation between Mother and Father J.H. and Mother’s drug

addiction, or to otherwise reweigh the evidence.

[24] Based upon the record, we cannot say that the findings of the trial court do not

support the conclusion that the Children’s physical or mental condition is seriously

impaired or seriously endangered as a result of the inability, refusal, or neglect of

Mother and Father J.H. to provide them with necessary supervision.

[25] In addition, to the extent Mother challenges the court’s conclusion that the

Children need care that is unlikely to be provided or accepted without the coercive

intervention of the court, the court found in part that coercive intervention is

necessary because Mother admitted to a heroin addiction and requested assistance

in obtaining in-patient treatment, that she did not follow through with any in-

patient treatment, that Father J.H. was arrested for domestic battery and admitted

to marijuana use, and that DCS is unaware if the issue of domestic violence has

been addressed.

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[26] While Mother argues that she was attending New Life Recovery on her own and

ultimately chose out-patient treatment, and thus that the evidence is insufficient to

show she was refusing treatment, we note the court’s findings reveal that Mother

has an admitted heroin addiction, that she used heroin, valium, and marijuana the

day before the December 28, 2013 altercation, and that two unused needles were

found in the home. We further note the court’s findings that Mother “wanted in-

patient treatment” and stated she was unable to afford in-patient treatment but was

willing to do it if DCS assisted her, that FCM Brady was not familiar with New

Life Recovery, that at the point of the family team meeting Mother had not

pursued the Harbor Lights referral, and that Mother again requested assistance

from DCS during the family team meeting. Id. at 52.

[27] Based upon the record, we cannot say the findings of the trial court do not support

the conclusion that the Children need care, treatment, or rehabilitation that is

unlikely to be provided or accepted without the coercive intervention of the court. 3

We conclude that the trial court’s findings of fact, conclusions, and judgment are

not clearly erroneous.

3
In support of her argument, Mother cites to the Indiana Supreme Court’s opinion in In re S.D., 2
N.E.3d 1283 (Ind. 2014), reh’g denied. In re S.D. involved a child who needed particular medical care,
and the Court found the fact that the single mother of four other children attempted but failed to
complete one step of a home-care simulation did not support an inference that the mother was likely to
need the court’s coercive intervention to finish the home-care simulation. 2 N.E.3d at 1286-1290.
These facts are factually distinguishable from those in this case.

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 Conclusion

[28] For the foregoing reasons, we affirm the trial court’s determination that the

Children are CHINS.

[29] Affirmed.

[30] Bailey, J., and Robb, J., concur.

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