FILED
Aug 18 2016, 8:06 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: August 18, 2016
A.H. (Minor Child), Child in Court of Appeals Case No.
Need of Services, 49A04-1601-JC-42
and Appeal from the Marion Superior
Court
A.H. (Mother),
The Honorable Marilyn A.
Appellant-Respondent, Moores, Judge
The Honorable Rosanne T. Ang,
v. Magistrate
Trial Court Cause No.
The Indiana Department of 49D09-1507-JC-2165
Child Services,
Appellee-Petitioner
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016 Page 1 of 12
[1] When a parent is unwilling or unable to provide help to his or her child,
Indiana’s Department of Child Services can seek the “coercive intervention” of
a court to compel that parent to provide help through a Child in Need of
Services (CHINS) adjudication, but this intrusion of the coercive power of the
State into family life is “reserved for families who cannot meet those needs
without coercion—not those who merely have difficulty doing so.” In re S.D., 2
N.E.3d 1283, 1285 (Ind. 2014). Nor is that power appropriately applied to a
parent who seeks reasonable care for her traumatized child, merely because that
care is ultimately unsuccessful through no fault of the parent.
[2] A.H. (Mother) appeals the juvenile court’s order finding her daughter, also
initialed A.H. (Child), to be a CHINS. Mother argues that the evidence is
insufficient to support the CHINS adjudication. Finding no evidence that the
coercive power of the court is necessary to ensure Child receives care, we
reverse.
Facts
[3] Child has had a difficult past. She was bullied in school for being interracial.
The bullying became so serious that she was admitted to a psychiatric hospital.
At fourteen years old, she became pregnant, and when she was eight months
pregnant, she was raped. As a result of these traumas, Child slept poorly and
was often violent. Police were called to the house several times, and Child was
arrested on some of these occasions. She has been diagnosed with anxiety
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disorder, separation anxiety, and depression. Mother has taken Child to receive
mental health care since Child was in fifth or sixth grade.
[4] In June 2015, the Indiana Department of Child Services (DCS) became
involved with the family when it received a report that Child had struck her
brother. A family case manager (FCM) spoke to Mother, but Child refused to
speak to the FCM. Mother informed the FCM that she had been taking Child
to mental health service providers but that Child refused to participate in the
services.
[5] On July 14, 2015, DCS filed a petition alleging that Child was a Child In Need
of Services (CHINS) because her “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.” Appellant’s
App. p. 26. That same day, the juvenile court held an initial hearing on the
petition. Mother was not present, as DCS had not yet served her. Along with
ordering continued in-home placement of Child, the juvenile court ordered
therapy and a psychological evaluation for Child, and ordered “DCS to staff the
matter for possible services through Cross Systems of Care.” Id. at 38-39.
[6] At the next hearing, two weeks later, DCS still had not served Mother, and still
had not arranged any services. The juvenile court noted, “Mother is willing to
participate in services.” Id. at 44. It also “order[ed] DCS to ensure that the
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services ordered at the initial hearing be arranged for the family by the end of
today.” Id. at 44-45. Another hearing was set for a week later.
[7] At that next August 4, 2015, hearing, DCS still had not arranged a
psychological evaluation. So again, the juvenile court “order[ed] DCS to
ensure that services that were ordered at the last hearing [are] in place.” Id. at
57. At the next hearing on August 18, DCS still had not made the referral for a
psychological examination. At the next hearing on August 25, DCS still had
not arranged a psychological evaluation, but told the juvenile court that it “will
be in place soon.” Id. at 66. The juvenile court “admonishe[d] DCS for not
having the referral for the psychological evaluation for [Child] in place [and]
order[ed] that DCS have the psychological evaluation . . . in place for [Child]
within 48 hours.” Id. DCS, however, did not comply with this order either.
[8] On September 2, Child became violent with her sister. Mother called the police
and asked them to take Child to the hospital, where Mother hoped a
psychological evaluation could be completed. DCS eventually referred Mother
to an organization named Damar for a mental health evaluation. However,
when Mother followed up on DCS’s referral, Damar informed her that it only
works with mentally handicapped persons, not mentally ill persons, and does
not perform mental health evaluations.
[9] The first psychological evaluation of Child began at her home on September 14,
2015, by Midtown Mental Health. Midtown required a second evaluation.
When Midtown sent out a representative on October 14, 2015, however, that
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individual did not have the training required to complete the evaluation, and so
left. No one from Midtown contacted Mother again. A psychological
evaluation was finally completed in November 2015 by Caring Associates in
Brownsburg. Because of DCS’s four-month delay from the initial court order,
the results of the evaluation were not available at the time of the November 16
and 23 fact-finding hearing.
[10] At that hearing, several witnesses, including Mother, told the juvenile court that
Child was benefitting from therapy. At the conclusion of the hearing, the
juvenile court adjudicated Child a CHINS. The juvenile court did not make a
written set of findings, but ended the hearing by saying the following:
Mother is not unwilling to provide for Child’s needs
“but the statute also says unable and I do think that you’ve been unable
for whatever reason to get the help that your daughter needs”
“we’re talking about violent outburst, whether it’s you, other adults who
live in the home.”
“Your own stated words as far as how [Child] would be as a mother 1 if
she did not get help”
Child “has a lot of issues and when I hear that she has been displaying
issues since she was in the fifth or sixth grade to allow that much time to
pas[s] for us not to get the help she needs that is an issue”
Child’s therapist “has made some headway in [getting Child to open up
therapeutically] and that is something that even you’ve admitted”
“The condition of this child is that she needs the help that we’re trying to
offer, that [Mother] you in fact are saying that you would like for her to
get and so while I understand why these proceedings become adversarial
at times I don’t think we have that different of a goal.”
1
Child has a son, who has been adjudicated a CHINS. Child’s son is not part of the present case.
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“This isn’t something that’s done immediately and so I think services still
need to remain in place and they are going to remain in place.”
Tr. p. 258-60.
[11] At a subsequent dispositional hearing in December 2015, DCS informed the
juvenile court that Mother was doing everything she could to get help for Child.
DCS explained that progress was held up because Child “really doesn’t want
the help.” Id. at 268. The juvenile court entered its dispositional order on
December 15, 2015, and Mother now appeals.2
Discussion and Decision
[12] Initially, we note that, as part of her appeal, Mother has challenged a January
12, 2016, juvenile court order issued after a periodic review hearing. At that
hearing, DCS recommended that the CHINS case be closed, since Child would
turn eighteen years old the following day. Both parents agreed. Nevertheless,
the juvenile court denied that request. That order, however, was issued after
the dispositional order that is currently being appealed, and is therefore not
properly before us.
2
In Mother’s reply brief, she contends that a portion of DCS’s brief is not supported by the record, and
finishes by saying, “This portion of Appellee’s Brief should be stricken because DCS fails to cite to the
transcript or Appendix or offer other support for those propositions.” Appellant’s Reply Br. p. 8. DCS took
this to be a motion to strike, to which it responded with a motion in opposition. We understand Mother’s
sentence to be a rhetorical device to critique DCS, not a formal motion, and therefore decline to issue any
ruling on this matter.
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[13] Mother also argues that the evidence is insufficient to support the juvenile
court’s CHINS finding. Our Supreme Court has explained the nature of
a CHINS proceeding and appellate review of a CHINS finding as follows:
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.R., 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 Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We
consider only the evidence that supports the trial court’s decision
and reasonable inferences drawn therefrom. Id. We reverse only
upon a showing that the decision of the trial 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, 1253–54 (Ind. 2012) (footnote omitted).
[14] Here, DCS alleged that Child was a CHINS pursuant to Indiana Code section
31–34–1–1, which provides as follows:
A child is a child in need of services if before the child becomes
eighteen (18) years of age:
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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:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without
the coercive intervention of the court.
Our Supreme Court has interpreted this provision to require “three basic
elements: that the parent's actions or inactions have seriously endangered the
child, that the child's needs are unmet, and (perhaps most critically) that those
needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,
1287 (Ind. 2014). Because the juvenile court did not adopt formal findings, we
review this case under the general judgment standard, under which a judgment
will be affirmed if it can be sustained on any legal theory supported by the
evidence. Id.
[15] We find our Supreme Court’s decision in S.D. to be instructive. In that case, a
single mother of five children struggled to care for two-year-old S.D., who had
severe health problems. S.D., 2 N.E.3d at 1285. S.D. required special medical
care, and hospital policy would not allow her to rejoin her mother until her
mother found a second caregiver and completed training to deal with S.D.’s
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condition. Id. at 1286. DCS acknowledged that the mother had “done a lot,”
but it sought the CHINS adjudication because she “received a lot of help and
she still needs a lot of help.” Id.
[16] Our Supreme Court reversed the CHINS adjudication, focusing particularly on
the “most critical[]” element: whether the care was “unlikely to be provided or
accepted without the coercive intervention of the court.” Id. at 1287; I.C. § 31-
34-1-1(2)(B). The Court concluded that the evidence did not show “that she
would be unable to correct her one lingering issue without the ‘coercive
intervention of the court.’ DCS’s desire to help this struggling family was
understandable, but the facts simply do not justify subjecting this family to State
compulsion.” Id. at 1285.
[17] Likewise, in this case, we can find no evidence in the record to support a
finding that Mother would not provide care to Child without the coercive
intervention of the court. At the fact-finding hearing, the juvenile court itself
told Mother “I don’t think you are unwilling . . . to get help.” Tr. p. 258. It
also conceded, “I understand that you can’t make a seventeen year old talk to
someone, that therapeutically you can’t make her open [up].” Id. at 259. It
acknowledged, “DCS can’t make, wave a magic wand and help your child
immediately any more than potentially what you could have and so long term
this is a long road.” Id. at 260.
[18] Instead, in making the CHINS adjudication, the juvenile court focused on a
particular word of the statute: “the statute also says unable and I do think that
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you’ve been unable for whatever reason to get the help that your daughter
needs.” Tr. p. 257.
[19] But the statute does not simply say “unable,” it focuses on a parent’s “inability,
refusal, or neglect . . . to supply the child with necessary food, clothing, shelter,
medical care, education, or supervision.” I.C. § 31-34-1-1(1) (emphasis added).
There is no evidence in the record that Mother failed “to supply” Child with the
help she needs; there are no missed appointments with a therapist, there are no
services Mother refused, there are no medications that Mother was unable to
provide.
[20] We understand DCS’s and the juvenile court’s frustration that Child has not yet
recovered from the unimaginable traumas that she suffered. But unless this lack
of recovery is attributable to some action or omission by Mother, the lack of
recovery alone cannot support a CHINS determination.
[21] To make a simple analogy: if a child is sick, and his parents take him to every
scheduled doctor’s appointment, but the doctors are unable to cure the child’s
disease, the child’s continued illness clearly could not support a CHINS
adjudication. And yet, according to the record before us, that is essentially
what has happened in this case. As Mother argued to the juvenile court:
How can you [adjudicate Child a CHINS] when I have done
everything to get my child some help and because counselors, the
juvenile system, everything has not been able to do anything then
that’s placed on me? . . . I took my daughter to a rape center,
they wouldn’t help her. I’ve taken my daughter to other places,
they wouldn’t help her . . . As a rape victim they said the first
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thing you have to do for a child is to be patient. I am doing
everything that I’ve been ordered to do and what I know I need
to do to help her.
Tr. p. 261.
[22] The CHINS adjudication is particularly troubling in this case, given DCS’s
inexcusable lack of diligence in referring Child for a psychological evaluation.
The juvenile court ordered DCS to refer Child for an evaluation on July 14,
2015. DCS did not do so. It then failed to comply with at least four additional
court orders to refer Child for an evaluation. The delay lasted for so long that
the results of the evaluation were not ready at the fact finding hearing four
months later. For DCS to fail to refer Child to a psychological evaluation, for
four months and despite multiple court orders, and then to pursue a CHINS
petition in which it claims that Mother was unable to supply Child with
medical care, is simply indefensible. Moreover, we question why the juvenile
court put absolutely no consequences in place for DCS’s repeated failures to
comply with court orders. DCS should not be permitted to violate court orders
with impunity.
[23] All of the evidence in the record, including the informal findings of the juvenile
court, show that Mother is willing and able to engage with all needed services
on behalf of Child. Since this is the case, there is insufficient evidence that
medical care “is unlikely to be provided or accepted without the coercive
intervention of the court.” I.C. § 31-34-1-1(2)(B).
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[24] The judgment of the juvenile court is reversed and remanded with instructions
to vacate the CHINS adjudication.
Najam, J., concurs.
Vaidik, C.J., concurs in result.
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