MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jan 28 2016, 8:34 am
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 APPELLANTS ATTORNEYS FOR APPELLEE
Jill M. Acklin Gregory F. Zoeller
McGrath, LLC Attorney General of Indiana
Carmel, Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: B.C., a Child in January 28, 2016
Need of Services, Court of Appeals Case No.
49A02-1503-JC-147
T.C. (Mother) and W.J. (Alleged
Appeal from the Marion Superior
Father #1), Court
Appellants-Respondents, The Honorable Marilyn A. Moores,
Judge
v. The Honorable Danielle P.
Gaughan, Magistrate
Indiana Department of Child Cause No. 49D09-1406-JC-1375
Services,
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellee (Guardian ad Litem).
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Bradford, Judge.
Case Summary
[1] Appellants-Respondents T.C. (“Mother”) and W.J. (“Alleged Father #1”)
appeal from the juvenile court’s determination that child B.C. (“Child”) is a
child in need of services (“CHINS”). In June of 2014, Mother gave birth to
Child. When Child was two weeks old, Mother sought assistance, indicating
that she was homeless. When Mother was offered a referral to a shelter, she
refused and indicated that she would obtain money for housing through
prostitution. A worker with the Homeless Initiative Project (“HIP”) contacted
Appellee-Petitioner the Indiana Department of Child Services (“DCS”) with
concerns about Child’s welfare.
[2] Due to concerns about Mother’s housing, illegal drug use, and mental health
issues, Child was removed from Mother’s care and DCS filed a CHINS
petition. Over the course of the next several months, Mother tested positive for
marijuana several times, was diagnosed with intermittent explosive and
depressive disorders, was living in an apartment paid for by Alleged Father #1,
and did not have steady employment. Meanwhile, Alleged Father #1, whose
paternity of Child had not yet been established, was rejected as a placement
option due to concerns about the appropriateness of his home.
[3] The juvenile court conducted a fact-finding hearing over three days in October
and December of 2014, after which it found Child to be a CHINS. Following a
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dispositional hearing, the juvenile court continued Child’s placement outside
the homes of Mother and Alleged Father #1 and entered participation orders
for Mother and Alleged Father #1. Alleged Father #1’s participation order
provided, inter alia, that he establish paternity of Child. In a motion to correct
error, Mother and Alleged Father #1 indicated that Alleged Father #1 has
executed an affidavit of paternity in June of 2014. Mother and Alleged Father
#1 argue that the juvenile court abused its discretion in finding that Child’s
physical or mental condition was impaired or seriously endangered or that she
needs care that she is not receiving. Because we conclude that the juvenile
court did not abuse its discretion, we affirm.
Facts and Procedural History
[4] On June 11, 2014, Child was born to Mother. On June 25, 2014, Mother
sought help because she was homeless at the time. DCS soon became involved,
which led to removal of Child from Mother’s care and the filing of a CHINS
petition on June 27, 2014. On October 27 and December 1 and 23, 2014, the
juvenile court conducted evidentiary hearings on DCS’s CHINS petition.
Following the evidentiary hearings, the juvenile court found Child to be a
CHINS and issued the following findings of fact, none of which are challenged
by Mother or Alleged Father #1:
1. [Child] is a minor child whose date of birth is June 11, 2014.
2. The mother of [Child] is [Mother].
3. The father of [Child] is [Alleged Father #1].
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4. Angela Floyd works with the Neighborhood Alliance for
Child Safety (NACS). Mother signed up for the Parents as
Teachers Program though NACS on June 25, 2015. Mother
told Ms. Floyd that she was staying at a hotel with her baby
but had run out of funds and was therefore homeless. Ms.
Floyd scheduled an appointment with the Homelessness
Initiative Program (HIP).
5. Jonathan Griffin is triage and outreach professional at HIP.
This program[] works to make resources available to homeless
individuals. Mother went to HIP with her NACS worker and
her baby. Mother told Mr. Griffin that she had nowhere to
go. Mr. Griffin told her they would try and find her a shelter
but Mother refused, saying, “I am not going to a f[******]
shelter; I will kill myself.” Mother told Mr. Griffin that she
would get money to pay for additional time at the hotel by
prostituting herself.
6. Once Mother left HIP, she told Ms. Floyd that she did not
want her services anymore. When Ms. Floyd asked where
she would go, Mother told her, “it is none of your f[******]
business.”
7. Michel[l]e Tackett was the family case manager that was
assigned to investigate the safety and welfare of [Child]. DCS
became involved with the family because of reports that
Mother and [Child] were homeless, that Mother admitted to
marijuana use and Mother had prior DCS history.
8. Prior DCS involvement was because of marijuana use and
homelessness but Mother’s mental health issues also became
an issue. Mother’s prior DCS involvement resulted in the
closure of the case with custody of the child awarded to the
child’s father.
9. On or about June 25, 2015 Ms. Tackett talked to Mother. At
that time Mother was staying [at] a hotel and before that she
was living in her cousin’s home while she was pregnant.
Mother said that she had been staying at a hotel recently and
before that she was living at her cousin’s home while she was
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pregnant. Mother acknowledged meeting with the housing
initiative program that day but they wanted her to stay in a
shelter and she did not want to. Other than “staying with a
friend” Mother had no plan as to where she would go with
the baby.
10. With regard to her substance use, Mother stated that she had
smoked [marijuana] the day before and twice since her
daughter was born. She submitted to an oral drug swab at
that time.
11. With regard to her mental health, Mother stated that she had
been diagnosed with depression, had been hospitalized for it
in 2013, has been prescribed medication but was not currently
taking any medication.
12. Ms. Tackett also spoke with [Alleged Father #1]. [Alleged
Father #1] stated that Mother was living with him but when
confronted with Mother’s statements about Mother staying in
a hotel, [Alleged Father #1] said that she did stay in a hotel.
13. DCS did not consider placement with [Alleged Father #1]
because paternity had not been established, there were
conflicting statements as to whether Mother would be staying
with him, and there were concerns that [Alleged Father #1]’s
home was not appropriate.
14. The child was removed by DCS and a child in need of
services (CHINS) was filed on or about June 27, 2014.
15. At the initial hearing regarding [Child], DCS recommended
continued out of home placement. Continued out of home
placement was authorized by the court and Mother was
authorized to have supervised parenting time.
16. After the initial hearing, in the parking lot of the courts,
Mother called Ms. Tackett a “bald-headed b[****]” and
threatened to hit her.
17. Another incident that occurred outside the courtroom in the
parking lot after a hearing was on October 13, 2014. Mother
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approached Jonathan Griffin from HIP and Angela Floyd
from NACS calling them names and yelling at them.
18. Mother submitted to drug screens on June 25, 2014, August
28, 2014, September 5, 2014 and September 13, 2014. All of
the screens were positive for THC at levels that over the
course of that period reflected new use.
19. Kurtis O’Brien is [] a clinical therapist though Cummings
Behavioral Health and received the referral for home based
therapy for Mother on July 9, 2014. The intake process was
completed on July 18, 2014 and services began. During the
intake process Mother had an angry outburst.
20. Mother has self-reported marijuana use to Mr. O’Brien and as
recently as this morning admitted to marijuana use since the
last appointment last week.
21. Mr. O’Brien and Mother have discussed her mental health
and Mother has acknowledged a hospitalization due to
mental health issues in 2013.
22. Mr. O’Brien has diagnosed Mother with intermittent
explosive disorder and depressive disorder.
23. Mr. O’Brien has seen the one bedroom apartment that
Mother lives in. [Alleged Father #1] pays for the apartment
though Mother reports they are not in a relationship.
24. Although Mother has made progress in her approximately 12
sessions with Mr. O’Brien, Mother continues to need on-
going therapy with Mr. O’Brien.
25. The home based case manager for Mother is Beth Oslane,
from Adult and Child. Mother and Ms. Oslane meet once a
week for 1 to 2 hours to address housing and employment.
Mother has discussed with Ms. Oslane what she would do if
[Alleged Father #1] stopped paying for her apartment.
Mother, however, believes that he will always take care of
her.
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26. During a supervised visit in her home in September, Mother
became upset and was angry about DCS and white people.
She paced around the apartment and was swearing.
27. At the time of the first day of trial on December 1, 2014,
Mother was working at Hardee’s on the west side. By the
time of the second day of trial on December 23, 2014, she no
longer had that job, reporting that she quit because the people
were difficult. At the time of the second day of trial, Mother
was working at Amazon.
28. Erica Glenn with Children’s Bureau is a foster care case
manager that facilitated an exchange of the child from foster
care to an unsupervised visit with [Alleged Father #1] in
August 2014. [Alleged Father #1] had not properly secured
[Child] in the car seat or the car seat into the car. Ms. Glen[n]
did a quick tutorial on how to properly use the car seat. Also,
when [Alleged Father #1] returned the child, the child’s
diaper had not been changed during the two hour visit.
[Alleged Father #1] stated that he did not get a chance to
change her diaper.
29. Richard Dark is employed by Family Works and he is a home
based case manager. He received the referral at the end of
August but did not make contact until September 8 or 9 of
2014. Mr. Dark assists with transportation to and from visits
and observes some of the visits. [Alleged Father #1] has been
cooperative but has had difficulty meeting with him because
of time limitations. He is employed, trying to start his own
business, and works 14 hours a day. [Alleged Father #1] has
his elderly Mother living with him.
30. Richard Dark does not recommend placement with [Alleged
Father #1] at this time. [Alleged Father #1] still requires
supervision at his visits. The visits are scheduled once per
week. Because [Alleged Father #1] does not have the time to
meet with Mr. Dark once a week to discuss parenting, Mr.
Dark does his best to address parenting at the beginning and
end of each visit.
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Appellants’ App. pp. 100-04.
[5] The juvenile court also concluded as follows:
31. 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 parents to supply the child with
necessary food, clothing, shelter, medical care, education, or
supervision. Mother has mental health issues that are
currently untreated and even by her own admission, on-going
marijuana use. Mother has repeated angry outbursts,
characteristic of her diagnosis for intermittent explosive
disorder. [Alleged Father #1] has not established paternity,
does not have the time or ability to care for [Child] and has
not demonstrated the ability to do so.
32. The child needs care, treatment, or rehabilitation that she is
not receiving and she is unlikely to be provided or accepted
without the coercive intervention of the court. Mother is
uncooperative, argumentative and aggressive with providers
that are trying to assist her. [Alleged Father #1] has not
established paternity and has not demonstrated the ability to
parent [Child].
Appellants’ App. p. 104.
[6] On January 23, 2015, the juvenile court held a dispositional hearing. DCS’s
counsel stated at the hearing that Mother had been testing positive for cocaine
use. Following the hearing the juvenile court issued participation orders for
both Mother and Alleged Father #1. The juvenile court ordered that Mother
establish paternity of Child, participate in home-based therapy and case
management, undergo substance abuse assessment and random drug screens,
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submit to a psychological evaluation, and participate in parenting time. The
juvenile court ordered that Alleged Father #1 establish paternity and participate
in home-based case management.
[7] On January 28, 2015, Mother and Alleged Father #1 filed a joint motion to
correct error, requesting the juvenile court reconsider its order to establish
paternity on the basis that Alleged Father #1 had executed a paternity affidavit
on June 16, 2014. Following a response by DCS, the juvenile court denied the
motion to correct error and vacated its order for DNA testing. On June 26,
2015, the juvenile court conducted a permanency hearing, after which it issued
an order granting DCS’s motion to add C.P. (“Alleged Father #2”) to the
CHINS case. On June 29, 2015, the juvenile court ordered Mother and Alleged
Father #2 to submit to DNA testing to establish Child’s paternity. On July 7,
2015, Mother and Alleged Father #1 jointly moved to rescind the juvenile
court’s order to submit to DNA testing. On August 7, 2015, the juvenile court
denied Mother and Alleged Father #1’s joint motion.
Discussion and Decision
[8] With respect to CHINS determinations, the Indiana Supreme Court has stated
the following:
[a] CHINS proceeding is a civil action; thus, “the State 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). We neither reweigh the evidence nor judge
the credibility of the witnesses. Egly v. Blackford County Dep’t of
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Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
only the evidence that supports the [juvenile] court’s decision and
reasonable inferences drawn therefrom. Id. We reverse only
upon a showing that the decision of the [juvenile] court was
clearly erroneous. Id.
…
There are three elements DCS must prove for a juvenile court to
adjudicate a child a CHINS. DCS must first prove the child is
under the age of eighteen; DCS must prove one of eleven
different statutory circumstances exist that would make the child
a CHINS; and finally, in all cases, DCS must prove the child
needs care, treatment, or rehabilitation that he or she is not
receiving and that he or she is unlikely to be provided or accepted
without the coercive intervention of the court. In re N.E., 919
N.E.2d at 105.
In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (footnote omitted).
[9] Indiana Code section 31-34-1-1, on which the juvenile court based its
disposition, provides that a child is a CHINS before the child becomes eighteen
years of age 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.
[10] As the Indiana Supreme Court has observed,
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Juvenile law is constructed upon the foundation of the State’s
parens patriae power, rather than the adversarial nature of corpus
juris. Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045, 16
L. Ed. 2d 84 (1966). Indeed, juvenile court jurisdiction “is rooted
in social welfare philosophy rather than in the corpus juris.” Id.
The purpose of the CHINS adjudication is to “protect the
children, not punish parents.” In re N.E., [919 N.E.2d 102, 106
(Ind. 2010)]. The process of the CHINS proceeding focuses on
“the best interests of the child, rather than guilt or innocence as
in a criminal proceeding.” Id.
In re K.D., 962 N.E.2d at 1255.
[11] Mother and Alleged Father #1 argue that the juvenile court’s finding that
section 31-34-1-1 was satisfied constitutes an abuse of discretion because all
indications were that Child appeared to be a healthy baby when removed from
Mother’s care. DCS, however, was not required to establish that Child had
already been harmed, only that her physical or mental condition was seriously
impaired or seriously endangered. “The CHINS statute … does not require
that a court wait until a tragedy occurs to intervene.” In re A.H., 913 N.E.2d
303, 306 (Ind. Ct. App. 2009) (citing Roark v. Roark, 551 N.E.2d 865, 872 (Ind.
Ct. App. 1990)). “Rather, a child is a CHINS when he or she is endangered by
parental action or inaction.” Id. With this in mind, we conclude that the
record contains ample evidence to support the juvenile court’s disposition.
I. Mother
[12] Mother came forward with two-week-old Child because she was homeless, and,
yet, when offered a referral to a shelter, flatly refused. Whatever Mother’s
feelings about homeless shelters, Child would have been provided with a roof
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over her head had Mother accepted the assistance offered to her. In the months
that followed Child’s removal, Mother showed an inability to provide stable
housing. At the time of the first fact-finding hearing in October of 2014,
Mother claimed that she was living in her own apartment. The apartment,
however, was being paid for by Alleged Father #1. In a previous case in which
Child’s sibling was removed from Mother’s care, Alleged Father #1 had also
been paying for an apartment for Mother but stopped, resulting in Mother’s
homelessness. Mother did not have a plan if Alleged Father #1 stopped paying
for the apartment in this case.
[13] Mother has unresolved mental health issues. Mother was hospitalized in 2013
for depression after she tried to kill herself and her aunt. Mother, however, has
not been in therapy and has not taken her prescribed medication. During this
CHINS case, Mother was diagnosed with intermittent explosive and depressive
disorders. O’Brien, Mother’s therapist, opined that Mother’s explosive disorder
could put Child at risk and that Mother needed ongoing therapy to address her
mental health issues. Additionally, Family Case Manager Simon Galaye
(“FCM Galaye”) was concerned for Child’s safety because Mother is unable to
control her emotions and had witnessed Mother’s “explosive” behavior on
several occasions. Tr. p. 270. Mother frequently directed her aggressive
behavior toward service providers, even having to be restrained by her attorney
and Alleged Father #1 as she approached Griffin following a hearing.
[14] Mother also has unresolved substance abuse issues. Mother admitted to using
marijuana regularly and tested positive for it seven times from June 25 to
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October 2, 2014. The record also indicates that Mother tested positive for
cocaine prior to the dispositional hearing.
[15] In summary, there is ample evidence in the record regarding Mother’s unstable
housing and employment situation, her unaddressed mental health issues, and
her continuing substance abuse. Additionally, Mother has shown little
indication that she is willing to accept the assistance she needs in order to
adequately care for Child, refusing to admit that she has mental health issues in
need of treatment, refusing assistance in finding housing, and frequently
displaying aggressive behavior toward service providers. The juvenile court did
not abuse its discretion in concluding that Mother was an unsuitable placement
option for Child at this time.
II. Alleged Father #1
[16] There is also ample evidence to support the juvenile court’s conclusion that
Alleged Father #1 is a not a suitable placement option for Child at this time.
DCS did not want to place Child in Father’s care because he resisted
establishing paternity, had not progressed enough in services, and had already
exhibited difficulty caring for his elderly mother. Alleged Father #1 was also
working long hours such that he was unable to find time to meet with home-
based case manager Dark to address parenting issues. Dark was ultimately
unable to recommend placement with Alleged Father #1 due to these concerns.
[17] Moreover, while Mother and Alleged Father #1 seem to proceed as though
Alleged Father #1’s paternity has been conclusively established, the record
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before us does not bear this out. First, although the paternity affidavit executed
by Alleged Father #1 and Mother is dated June 16, 2014, the same document
indicates that it was, in fact, signed and filed on July 7, 2014, ten days after DCS
became involved and eight days after Child was removed from Mother’s care.
As for Alleged Father #2, he contacted the juvenile court on June 25, 2015, and
indicated that he was Child’s biological father. Alleged Father #2 testified at
the permanency hearing that Mother told him that he was Child’s biological
father.
[18] The Indiana Supreme Court has observed that “there is a substantial public
policy in correctly identifying parents and their offspring.” In re Paternity of
S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992). “Proper identification of parents
and child should prove to be in the best interests of the child for medical or
psychological reasons.” Id. We have held that “a biological father was entitled
to file a petition to establish paternity under the Indiana Code despite the fact
that the mother and a different man had executed a paternity affidavit.” In re
Paternity of E.M.L.G., 863 N.E.2d 867, 870 (Ind. Ct. App. 2007). If it is
ultimately established that Alleged Father #1 is not, in fact, Child’s biological
father, that would further undermine his suitability as a placement option, to
say the least.
[19] In summary, doubts regarding (1) Alleged Father #1’s biological relationship
with Child, (2) parenting skills, (3 stated plans to secure relative daycare, and
(3) willingness and availability to parent are sufficient to support the conclusion
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that he is not a satisfactory placement option at this time. The juvenile court
did not abuse its discretion in this regard.
III. Whether the Juvenile Court’s
Coercive Intervention is Necessary
[20] Mother and Alleged Father #1 argue that even if one assumes that Mother does
suffer from mental illness, the juvenile court’s coercive intervention is not
necessary. Although Mother did initially seek services, she did not accept the
assistance that was offered and ceased those services altogether after DCS
became involved. Moreover, throughout the instant case, Mother had shown
considerable resistance to—and hostility toward—DCS, service providers, and
the juvenile court. Finally, Mother does not acknowledge that she has
substance abuse or mental health issues, so those remain unaddressed. As for
Alleged Father #1, his paternity has not yet been established, and he has been
unwilling or unable to make the time to take full advantage of the services
offered to him. It is reasonable to expect that Alleged Father #1’s interest will
wane further if it is established that he is not Child’s biological father. The
juvenile court did not abuse its discretion in concluding that its coercive
intervention was necessary in order to assure that Child receives appropriate
care.
The judgment of the juvenile court is affirmed.
Baker, J., and Pyle, J., concur.
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