In the Matter of: B.S. and A.S., Children In Need of Services, and M.S. v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision
shall not be regarded as precedent or Aug 28 2015, 8:39 am
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
Michael D. Gross Gregory F. Zoeller
Lebanon, Indiana Attorney General of Indiana

Robert J. Henke
James D. Boyer
Deputies Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the matter of: August 28, 2015
B.S. and A.S., Children In Need Court of Appeals Case No.
of Services, and 06A01-1501-JC-19
M.S., Appeal from the Boone Circuit
Appellant-Respondent, Court;
The Honorable J. Jeffrey Edens,
v. Judge;
The Honorable Sally E. Berish,
Magistrate;
The Indiana Department of 06C01-1404-JC-103
Child Services, 06C01-1405-JC-124
Appellee-Petitioner.

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 May, Judge.

[1] M.S. (Mother) appeals the adjudication of her children, B.S. and A.S.

(Children), as Children in Need of Services (CHINS). She argues the

Department of Child Services (DCS) did not provide sufficient evidence

Children were CHINS. We affirm.

Facts and Procedural History
[2] Mother gave birth to B.S. on September 25, 2012. On April 24, 2014, Lebanon

Police received a report of an impaired person walking with a child. Police

discovered Mother with B.S., who had not been fed or changed in a day.

Officers observed Mother seemed “somewhat confused” and had difficulty

“formulating her answers” to questions. (Tr. at 6-7.) Officers bought food for

B.S. and Mother changed B.S.’s diaper on the officers’ instruction. The officers

took Mother and B.S. to where Mother was staying with friends in Lebanon

and contacted DCS.

[3] DCS Family Case Manager Rachel Kenworthy conducted an assessment,

transported Mother and B.S. back to their home in Thorntown, and established

a safety plan with Mother and B.S. Mother consented to a drug test and tested

negative. On April 25, DCS received a report Mother left B.S. with the friends

with whom she had been staying and did not indicate when she would return.

FCM Kenworthy, the family, and the police attempted to contact Mother to no

avail. DCS detained B.S. because Mother could not be located and the family

had prior DCS history. The trial court held a detention hearing regarding B.S.

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 on April 29, during which Mother indicated she was staying with a friend;

FCM Kenworthy later determined Mother was homeless.

[4] On May 11, 2014, Mother gave birth to A.S. DCS detained A.S. because

Mother was homeless and had refused DCS assistance to find housing when

discharged from the hospital. However, at the May 14 detention hearing, the

trial court returned A.S. to Mother because Mother was living with her friend,

R.W.

[5] Sometime after A.S.’s birth, B.S. was diagnosed with two medical conditions

involving his kidneys and genitalia that required surgery. Mother attended

some appointments regarding the condition, but insisted at one point, “you’re

[DCS] liars and you want to take [B.S.’s] kidney.” (Tr. at 80.) B.S. also has

speech delays.

[6] On June 6, DCS Family Case Manager Kristin Miller visited R.W.’s home to

check on the living arrangements and A.S.’s well-being. R.W. expressed

concern regarding A.S.’s health and A.S.’s diaper rash. R.W. also indicated

Mother would leave A.S. for long periods of time with random caregivers who

did not know where Mother was. R.W. reported Mother was dating D.Z., who

had been convicted of child molesting. Mother confirmed she had a romantic

relationship with D.Z. and sent him money while he was in prison.

[7] Later on June 6, R.W. brought Mother to the DCS office to formulate a safety

plan to deal with A.S.’s health problem, which turned out to be thrush, and

A.S.’s diaper rash. Mother was verbally combative with DCS staff, though she

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 reluctantly signed the safety plan. Before leaving, she engaged in a

confrontation with another DCS staff member, during which Mother banged on

a table, making A.S.’s “head bounce[] off the table.” (Tr. at 35.) DCS detained

A.S. at that time. On June 10, the trial court conducted a detention hearing

and ordered A.S. to remain in foster care with B.S.

[8] The trial court held a fact-finding hearing and adjudicated the Children as

CHINS.

Discussion and Decision
[9] DCS presented sufficient evidence Children were CHINS. A CHINS

proceeding is civil in nature, so DCS must prove by a preponderance of the

evidence that a child is a CHINS as defined by the juvenile code. In re N.E.,

919 N.E.2d 102, 105 (Ind. 2010). Ind. Code § 31-34-1-1 states:

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:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the
coercive intervention of the court.

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 A CHINS adjudication “focuses on the condition of the child,” and not the

culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding

a child to be a CHINS is to provide proper services for the benefit of the child,

not to punish the parent. Id. at 106.

[10] When a juvenile court enters findings of fact and conclusions of law in a

CHINS decision, we apply a two-tiered review. Parmeter v. Cass County DCS,

878 N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first consider

whether the evidence supports the findings and then whether the findings

support the judgment. Id. We may not set aside the findings or judgment

unless they are clearly erroneous. Id. Findings are clearly erroneous when the

record contains no facts to support them either directly or by inference, and a

judgment is clearly erroneous if it relies on an incorrect legal standard. Id. We

give due regard to the juvenile court’s ability to assess witness credibility and we

do not reweigh the evidence; we instead consider the evidence most favorable

to the judgment with all reasonable inferences drawn in favor of the judgment.

Id. We defer substantially to findings of fact, but not to conclusions of law. Id.

[11] Mother argues DCS did not present sufficient evidence Children needed “care,

treatment, or rehabilitation” they were not receiving that would be “unlikely to

be provided or accepted without the coercive intervention of the court.” Ind.

Code § 31-34-1-1(2). Mother contends she has made “positive steps” since the

beginning of the CHINS proceedings, and the court did not take into account

that she was attending therapy and working on getting a stable income and

housing when it adjudicated Children as CHINS. (Br. of Appellant at 8.)

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[12] The trial court found:

The coercive intervention of the Court is necessary because two
serious and previously undiagnosed medical conditions have
been discovered in [B.S.] and said conditions require regular
doctor appointments and monitoring[.] Mother has exhibited no
ability to provide reliable private or public transportation for
herself and the Children. Mother has had an ongoing
relationship with [D.Z.], a convicted and registered child
molester, including providing financial assistance to him before
and since his incarceration, a relationship Mother plans to
continue at such time as [D.Z.] may be released from prison.
Additionally, Mother is currently incapable of regulating her
emotions and reactions when faced with a situation she does not
like. Mother’s testimony evidences she either has no concern or
perhaps no comprehension that her reactions are excessive and
inappropriate. Her combative, volatile outbursts when she is
unhappy or angry or frustrated place the Children at risk of
potential physical harm, which in fact has already happened with
[A.S.]. Mother is currently unable to modify her reactions, and
has only recently begun to explore in therapy managing
frustration and appropriate responses.

(App. at 91-2.) Mother’s argument is a request for us to reweigh the evidence,

which we cannot do. See Parmeter, 878 N.E.2d at 450 (appellate court does not

reweigh evidence). The facts, as set forth above herein, support the court’s

findings and those findings support the court’s conclusion Children are CHINS.

Conclusion
[13] DCS presented sufficient evidence Children were CHINS. Accordingly, we

affirm.

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[14] Affirmed.

Crone, J., and Bradford, J., concur.

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