In Re J.H. (Minor Child), Child in Need of Services, and E.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 30 2015, 10:39 am
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
Steven J. Halbert Gregory F. Zoeller
Carmel, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re J.H. (Minor Child), Child October 30, 2015
in Need of Services, Court of Appeals Case No.
49A02-1503-JC-158
and
Appeal from the Marion Superior
E.H. (Mother), Court, Juvenile Division
Appellant-Respondent, The Honorable Marilyn A.
Moores, Judge, and the Honorable
v. Rosanne T. Ang, Magistrate
Trial Court Cause No.
The Indiana Department of 49D09-1406-JC-1275
Child Services,
Appellee-Petitioner.

Mathias, Judge.

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[1]   The Marion Superior Court found J.H. to be a Child in Need of Services

(“CHINS”). J.H.’s mother, E.H. (“Mother”) appeals this determination and

presents two issues, which we restate as: (1) whether the trial court’s CHINS

finding is supported by sufficient evidence, and (2) whether the trial court’s

CHINS finding was based on improper grounds.

[2]   We affirm.

Facts and Procedural History

[3]   J.H. was born in December 2010 to Mother and J.R. (“Father”).1 J.H. was later

diagnosed as being on the autism spectrum. For approximately a year and a

half after J.H.’s birth, Mother and J.H. lived with Father in an apartment

owned by Mother’s parents in Washington, D.C. Mother moved out of this

apartment in February 2012 and took J.H. with her. Mother’s reason for

moving was her belief that Father and her mother (“Grandmother”) were too

close and had an inappropriate relationship. Mother apparently first moved to

another location in Washington, then in October 2012, moved to Maryland. In

December 2013, Mother and J.H. began to live in a shelter in Washington and

stayed there until January 2013, when they moved to Virginia, where Mother

1
The record appears to still have some uncertainty regarding J.H.’s paternity. Mother initially admitted that
J.R. was the child’s father, as he is named on the birth certificate as the father. J.R. later signed a paternity
affidavit admitting that he was J.H.’s father. During the CHINS proceedings, however, Mother claimed that
she was still married to another man at the time of J.H.’s birth. She also claimed that another man was
possibly J.H.’s father. At the time of the CHINS dispositional order, the issue of J.H.’s paternity was still
unsettled. Thus, J.R. is referred to in the record both as J.H.’s father and alleged father. For purposes of this
appeal, in which J.R. does not participate, we will refer to him as J.H.’s father.

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 worked as a nanny. Then, in February or March of that year, Mother moved to

Ohio, again taking J.H. with her. In Ohio, Mother lived in two different cities

and initially stayed in a shelter before moving into a hotel and eventually an

apartment. During this time, Mother supported herself and J.H. by working as

a writer for internet sites and by non-court-ordered “child support” money that

Father gave to help provide for J.H.

[4]   During this time, Mother believed that Father and Grandmother were harassing

her, which she referred to as “abuse.” See, e.g., Tr. p. 13. Specifically, she

claimed that they were attempting to “gaslight” her, which she described as

attempting to make her think that she was insane so that she would kill herself.2

See id. at 8, 13, 19, 56-57. Mother also displayed somewhat paranoid behavior,

e.g., refusing to provide fingerprints for a job application for fear that

Grandmother, a retired CIA analyst, would use her fingerprints to track her.

Mother also suspected that Grandmother had infected her computer with

spyware because her computer crashed after receiving email from

Grandmother.

[5]   Spurred by her fear of Father and Grandmother, Mother left Ohio with J.H.

briefly for Florida to establish a “confidential” address via a P.O. Box, so that

2
See Mikkelson v. Shackleton, 2015 WL 4935632, at *2 (Iowa Ct. App. Aug. 19, 2015) (describing gaslighting
as “‘methodically providing false information to a person such that the person doubts his or her own
perception and memory.’ The term comes from the 1938 play Gas Light (also known as Angel Street ) by
Patrick Hamilton.”); Coburn v. Moreland, 433 S.W.3d 809, 818 (Tex. App. 2014) (describing gaslighting as
“manipulative behavior used to confuse people into questioning their reactions to events, so much so that the
victims of gaslighting begin to question their own sanity.”).

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 Grandmother and Father could not locate her. Id. at 8. Mother and J.H. then

came to Indiana, where she planned to stay temporarily before moving back to

Florida. While Mother was in Indiana, her car broke down, and she was

homeless. She eventually found shelter at the home of someone she met

through a local church. Since this arrangement was not permanent, she went to

a shelter after a few weeks. However, Mother was concerned that her family

would be able to track her by accessing the shelter’s security cameras, and

returned to the church member’s home.

[6]   On June 11, 2014, the Indiana Department of Child Services (“DCS”) received

a report that Mother had unstable housing, had repeatedly moved, and would

not leave the church member’s home despite requests to do so; the report also

indicated that J.H. had not been receiving services for his autism. Concerns

about Mother’s mental stability were also reported. During the subsequent

investigation, DCS determined that Mother did not have stable housing, had

little or no money, and was waiting for a school stipend to be able to care for

J.H. Mother claimed to be the victim of domestic violence but declined to

provide DCS with the name of her domestic violence counselor in Florida.

Mother declined to return to the shelter due to her fear over the cameras and

the lack of internet access, which she stated she needed to continue her

employment as an internet writer. Mother also indicated her desire to return to

Florida.

[7]   On June 13, 2014, DCS filed a petition alleging that J.H. was a CHINS due to

Mother’s lack of stable housing, the failure to obtain services for J.H.’s autism,

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 and Mother’s apparent mental health issues. DCS did not remove J.H. from

Mother’s care at that time, but that same day, the trial court entered an initial

detention hearing at which it ordered J.H. to be placed with Father, who had

come to Indiana. On June 17, 2014, the trial court denied Mother’s request to

place J.H. in her care and ordered DCS to file an expedited request to place

J.H. with Father under the Interstate Compact on the Placement of Children

(“ICPC”). The court also ordered J.H. to be placed in foster care if Father was

unable to remain in Indiana. Although the trial court authorized the expedited

ICPC placement with Father on June 23, 2014, Father returned to North

Carolina, where he had been residing, and J.H. was placed in foster care. At

some point in June 2014, Mother moved to Orange County, Indiana. For the

first several months, she stayed at an extended-stay hotel but later moved into

an apartment.

[8]   During the CHINS proceedings, Mother admitted that J.H. was on the “autism

spectrum” and had developmental delays in sensory processing, meaning that

he is more sensitive to certain feelings and sounds. He had been in therapy since

he was approximately eighteen months old and received services in Maryland

and in Ohio. DCS recommended that J.H. receive physical and occupational

therapy. Father reported that, since being removed from Mother’s care, J.H.

had improved. In Mother’s care, J.H. was fed only baby food, due to concerns

that he might choke, and drank from a sippy cup, but in Father’s care, he had

begun to eat more solid foods and drink from a straw and a water bottle.

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[9]   A fact-finding hearing was held on August 27, 2014. At this time, Mother had

leased a three-bedroom apartment in Orange County, Indiana, and was

working at a bar and continuing to work as an internet writer. Mother was

consistent in her visitation with J.H. and was appropriately focused on his

needs as an autistic child. Mother also consistently participated in the offered

services. The trial court ordered J.H.’s guardian ad litem (“GAL”) to visit and

inspect Mother’s home.

[10]   At a placement hearing held on September 4, 2014, the trial court ordered DCS

to refer Mother to services in Orange County, where she lived, and to place

J.H. as close to Mother’s home as possible. The trial court held additional fact-

finding hearings on October 7 and December 10, 2014, and took the matter

under advisement.

[11]   On January 27, 2015, the trial court entered an order finding J.H. to be a

CHINS, which found in relevant part:

21. [J.H.] needs stability and familiarity. [J.H.] also needs
occupational therapy and physical therapy that he has not been
consistently receiving due to his frequent moves. The only record
of [Mother] seeking therapeutic services for [J.H.] occurred while
they were living in Ohio. That provider indicated meeting with
[Mother] only two times.

22. Both [Mother] and [Father]’s interactions with [J.H.] have
been observed to be affectionate and appropriate.

23. [Mother] does not feel that she needs therapy as the distance
she has placed between herself and [Father] and [Grandmother]
have helped her situation. [Mother] believes that she has

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 provided stability for [J.H.] to the extent that she had a daily
schedule for him as well as took him to the same stores.
Additionally, [Mother] considers being in hotels as consistent
and indicated that the child’s first word was “room.”

24. [Father] does not believe that he needs assistance as he has
researched how to obtain services for [J.H.] in North Carolina.

25. [Mother] states concerns for [Father] due to his emotional
abuse and threats. [Mother] has also made allegations of [Father]
being domestically violent. [Father] states concerns for
[Mother]’s mental health and stability.

26. [J.H.]’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 . . . to supply the child with
necessary food, clothing, shelter, medical care, education, or
supervision. Stability is particularly important for a child who has
been determined to be on the autism spectrum in order to
promote daily functioning and consistent therapy. [Mother] has
failed to provide a stable environment for the child. She has
moved a significant number of times in the past two years and
has not established a stable routine for the child. [Father] has also
failed to provide a stable environment for the child as he has not
been [J.H.]’s primary caregiver for approximately two years with
the exception of the month that he spent in Indianapolis under
the order of this Court. Despite the actions of the parents and
their stated reasons for these actions, the condition of [J.H.] is
that he is a child who has been determined to be on the autism
spectrum and who has not had consistent therapy for the past
two years.

27. [J.H.] needs care, treatment, or rehabilitation that he is not
receiving and is unlikely to be provided or accepted without
coercive intervention of the court. [Mother] has stated that her
original intention was to continue traveling with the child with
the ultimate goal of moving to Florida. After the filing of the
CHINS action, [Mother] has remained in [Orange County] for

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 approximately six months, which is seemingly one of the longest
periods of stability she has had in over two years. The coercive
intervention of this Court is needed to ensure that [J.H.] receives
the consistent therapy that he requires.

IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that [J.H.] is a [CHINS].

Appellant’s App. pp. 172-73.

[12]   The court then held a dispositional hearing on February 17, 2015. At this

hearing, DCS indicated that Mother was stable and that J.H. had been enrolled

in appropriate educational programs. DCS requested that the trial court close

the case; the GAL, previously unaware of DCS’s plan to request that the case

be closed, had no recommendation. The trial court ordered Mother to

participate in home-based therapy and undergo a complete psychological

evaluation. It also ordered in-home visitation. However, the trial court declined

to close the case and ordered that J.H. remain in the custody of DCS and

placed in foster care. The case goal remained reunification. Mother now

appeals.

I. Sufficiency of the Evidence

[13]   Mother first claims that the trial court erred in finding J.H. to be a CHINS

because the evidence was insufficient to establish that the coercion of the court

was necessary for J.H. to receive services.

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

a CHINS if:

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

[15]   DCS has the burden of proving by a preponderance of the evidence that the

child in question is a CHINS. Perrine v. Marion Cnty. Office of Child Servs., 866

N.E.2d 269, 273 (Ind. Ct. App. 2007) (citing Ind. Code § 31-34-12-3). The trial

court should consider the family’s condition not only when the case was filed,

but also when it is heard. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014), reh’g

denied. When reviewing the sufficiency of evidence to support the trial court’s

CHINS determination on appeal, we consider only the evidence most favorable

to the trial court’s judgment and the reasonable inferences flowing therefrom.

Perrine, 866 N.E.2d at 273. We do not reweigh the evidence or judge the

credibility of witnesses. Id.

[16]   Here, Mother refers to the evidence indicating that she has adequate housing, is

bonded and appropriately cares for J.H., and has fully cooperated with

therapists and caseworkers to engage J.H. in services and treatment. Mother’s

home-based therapist indicated that she had no concerns for J.H.’s safety if he

were to be placed in Mother’s care and recommended that J.H. be placed with

Mother. Even the DCS caseworker testified that she had no concerns with

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 placing J.H. with Mother. Indeed, DCS recommended that the CHINS case be

closed.

[17]   Still, Mother acknowledges that, in the past, she had inadequate housing and

that J.H. was not receiving services. She blames this, however, on her fleeing

from what she refers to as “domestic violence,” though the record does not

indicate that either Grandmother or Father were ever physically violent towards

Mother or J.H. Mother’s claims regarding Father and Grandmother, which

they denied, did not have to be credited by the trial court. Indeed, given the

concerns over Mother’s paranoia, the trial court could reasonably conclude that

Mother’s claims were exaggerated, delusional, or a combination thereof.

[18]   Mother still argues, however, that the conditions as they existed at the time of

the CHINS hearing were insufficient to support keeping the CHINS case open.

In this regard, Mother likens her situation to that before the Indiana Supreme

Court in In re S.D., supra.

[19]   In that case, the child, S.D., suffered from a heart condition and was transferred

from the family’s home in northern Indiana to Riley Hospital in Indianapolis.

At first, the mother stayed in Indianapolis with S.D. while the other children

remained with relatives in Gary. However, when all the children moved to

Indianapolis, the mother struggled to meet the family’s needs—failing to enroll

the children in school and spending less time with S.D. and attending to her

needs. The mother then consented to DCS taking custody of the children. By

the time of the CHINS fact-finding hearing, however, the mother had moved

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 into a three-bedroom home and renovated it adequately for the family to live in.

The children other than S.D. had been returned to the mother’s care. Although

S.D. no longer required a ventilator, the hospital would not permit her to be

released to her mother until she and another caregiver had completed

“significant medical training” to care for S.D.’s tracheostomy at home.

“However, [m]other struggled to find a second caregiver and had not finished

the final step of the necessary medical training [and] had largely spurned DCS’s

help in identifying sources of social assistance and locating job opportunities.”

Id. at 1286. Instead, the mother relied on financial help from family, pursued a

job lead she found on her own, and was still unemployed as of the hearing. Id.

[20]   The trial court found S.D. to be a CHINS because no one in the home had

completed the necessary medical training to meet S.D.’s special needs. Id. This

court affirmed in an unpublished memorandum decision, and our supreme

court granted transfer and held:

Th[e] evidence, even viewed most favorably to the judgment,
cannot reasonably support an inference that Mother was likely to
need the court’s coercive intervention to finish the home-care
simulation. A CHINS finding should consider the family’s condition
not just when the case was filed, but also when it is heard. And here,
Mother had resolved the issues involving S.D.’s siblings by the
time of the hearing and completed all but the final step necessary
for S.D.’s return home. Her approach to solving those problems
was at times fitful or idiosyncratic—but it worked, as
demonstrated by the siblings’ return home weeks before the fact-
finding hearing, and the court’s eventual rejection of the CHINS
allegations as to them. And though the State’s intervention enabled
some of her progress, such as the ability to renovate the house while the

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 children were out of her care, none of the State’s actions compelled her
accomplishments. Though the evidence shows she had difficulty
completing the last step of medical training, we cannot say she
was unwilling or unable to do so without the court’s
compulsion—and so the State’s coercive intervention into the
family cannot stand.

2 N.E.3d at 1290 (emphasis added) (citations omitted).

[21]   In the present case, Mother claims that, as in S.D., she too had improved her

situation such that, by the time of the CHINS fact-finding hearing, the State’s

coercive intervention was not needed. Although this is admittedly a close call,

we cannot say that the present case is on all fours with S.D.

[22]   Here, Mother had made recent improvements, but, unlike the mother in S.D.,

she had a history of frequently moving residences and housing instability,

which adversely affected J.H.’s ability to receive treatment and services for his

autism. Unlike in S.D., here, the State’s intervention does seem to have

compelled Mother’s accomplishments. Before DCS’s intervention, Mother

frequently moved, had no job, little money, and no stability with regard to

housing. Indeed, she planned on moving to Florida again after spending a short

time in Indiana. After DCS became involved, Mother secured employment and

eventually adequate housing. Based on Mother’s prior behavior, the trial court

was within its discretion to believe that, absent its involvement, Mother might

again revert to her prior behavior to the detriment of J.H. We therefore reject

Mother’s claim that DCS’s involvement is what caused the “chaos” into J.H.’s

life. To the contrary, there is every reason to believe that, absent DCS’s

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 involvement, Mother would not have settled down and been able to improve

her condition to the extent that she has now, admirably.

[23]   Given the significant deference we give to trial court’s in such matters, we

cannot say that the trial court’s decision not to close the CHINS case and to

keep J.H. in the custody of DCS, with trial visitation for Mother, was clearly

erroneous. Instead, the evidence favorable to the trial court’s decision shows

that J.H.’s mental condition was seriously impaired or endangered by Mother’s

inability or refusal to supply him with the necessary medical care and that J.H.

needs care and treatment that he was not receiving and was unlikely to receive

without the coercive intervention of the trial court. Accordingly, we affirm the

trial court’s CHINS finding and dispositional decree.

II. Improper Grounds for Trial Court’s Decision

[24]   Mother also contends that the trial court’s dispositional decree, in which J.H.

was ordered to remain a ward of DCS and Mother ordered to complete

services, was improper because DCS recommended that the case be closed and

because the trial court’s true goal was simply to facilitate a visitation schedule

between Mother and Father.

[25]   First, to the extent that Mother claims that the trial court’s order was improper

simply because DCS recommended that the case be closed, we disagree. The

trial court has the ultimate authority to decide the CHINS case.

[26]   Further, we disagree with Mother that the trial court kept the CHINS case open

and issued its dispositional decree simply to facilitate visitation. As Mother

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 admits, the issue of visitation is not mentioned in the trial court’s dispositional

order being appealed. Mother instead points to an extended discussion the

parties had at the end of the fact-finding hearing regarding the issue of

visitation. See Tr. pp. 373, 379-85. Simply because the trial court discussed the

issue of visitation, and the concurrent paternity action, does not mean that the

trial court based its dispositional decree on a desire to facilitate visitation. As

noted above, evidence was sufficient to support the trial court’s CHINS finding

and dispositional decree. The discussion of visitation with Father does not alter

this or vitiate the validity of the trial court’s order.

[27]   Affirmed.

Bailey, J., concurs.

Baker, J., dissents with opinion.

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 IN THE
COURT OF APPEALS OF INDIANA

In Re J.H. (Minor Child), Child Court of Appeals Case No.
in Need of Services, 49A02-1503-JC-158

and
E.H. (Mother),
Appellant-Respondent,

v.

The Indiana Department of
Child Services,
Appellee-Petitioner.

Baker, Judge, dissenting.

[1]   I respectfully dissent. In this case, Mother had led an unstable life during the

years leading to the filing of the CHINS petition. She and J.H. had lived in

multiple residences in multiple states. During that time, she made an effort to

ensure that J.H. received the services that he needed but did not always

succeed. Mother may have also had some mental health issues.

[2]   As a result of those circumstances, DCS filed a CHINS petition in June 2014.

The factfinding was not completed until December 2014. During those six

months, Mother participated voluntarily in multiple services, including home-

based therapy and individual therapy. She fully cooperated with all service

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 providers, even driving repeatedly to Marion County when she was living in

Orange County to participate with services and visits until DCS transferred her

services to her home county. By the time of the completion of the factfinding

hearing, Mother’s home-based therapist had no safety concerns and

recommended placement of J.H. with Mother; Mother’s individual therapist

had observed many positive interactions between Mother and J.H. and had no

safety concerns; and the DCS case manager had no safety concerns. Mother

also agreed to enroll J.H. in a preschool program and therapy recommended by

DCS. Additionally, Mother had signed a lease for an appropriate three-

bedroom home and had been living there for four months at the time the

factfinding hearing was completed.

[3]   In sum, Mother needed some help to achieve stability in her life. She welcomed

and received the assistance provided by DCS. And by the time of the

completion of factfinding, she had achieved stability. The system worked. There

is simply no evidence in the record that, at the time of the factfinding hearing,

the coercive intervention of the court was necessary or that J.H. was in any way

endangered in Mother’s care. In my view, therefore, the juvenile court erred by

finding J.H. to be a CHINS.

[4]   Furthermore, and in my opinion even more egregiously, the juvenile court erred

by proceeding to disposition on Mother and J.H. following the CHINS

adjudication. At the dispositional hearing, all service providers and DCS

recommended successful case closure. No one voiced a single safety concern.

Notwithstanding this reality, the juvenile court ordered that J.H. remain a ward

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 of DCS and ordered Mother to participate in services—services that the

providers themselves had declared to be unnecessary. From the record, it is

evident that the reason the juvenile court took this course was to enable Mother

and J.H.’s father to reach a visitation arrangement. This is an entirely

inappropriate reason to declare that a child must remain a ward of the State and

order a parent to participate in services.

[5]   In my opinion, the juvenile court erred twice—first, by adjudicating J.H. to be a

CHINS, and second, by proceeding to disposition in the face of the

recommendation of DCS and all service providers that the case be closed

successfully. Therefore, I respectfully dissent from the majority as I believe we

should reverse.

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