In the Matter of: J.D., a Child in Need of Services, B.D. (Mother) and W.D. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)
MEMORANDUM DECISION FILED
Nov 04 2016, 9:28 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
MOTHER Gregory F. Zoeller
Amy Karazos Attorney General of Indiana
Greenwood, Indiana Robert J. Henke
ATTORNEY FOR APPELLANT FATHER David E. Corey
Deputy Attorneys General
Steven J. Halbert Indianapolis, Indiana
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: J.D., a Child in November 4, 2016
Need of Services, Court of Appeals Case No.
49A02-1604-JC-721
B.D. (Mother) and W.D.
Appeal from the Marion Superior
(Father), Court
Appellants-Respondents, The Hon. Marilyn A. Moores, Judge
v. The Hon. Rosanne Ang, Magistrate
Cause No. 49D09-0508-JC-2373
Indiana Department of Child
Services,
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellee-Guardian Ad Litem.
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Bradford, Judge.
Case Summary
[1] Appellants-Respondents B.D. (“Mother”) and W.D. (“Father”) (collectively,
“Parents”) appeal from the juvenile court’s determination that J.D. (“Child”) is
a child in need of services (“CHINS”). Parents adopted Child when he was
approximately ten or eleven years old. In July of 2015, sixteen-year-old Child
ran away from home for the sixth time. When Child was found, he lied about
his and Parents’ identities and was placed in the Children’s Bureau. In early
August, Child was emergency-placed in acute inpatient treatment at Options
Behavioral Health. Meanwhile, DCS had requested permission to file a
petition to have Child declared a CHINS, which it did approximately one week
after Child’s identity was discovered and Parents were notified.
[2] In mid-September of 2015, Child was moved to the Southwest Indiana Regional
Youth Village in Vincennes (“Southwest”) and eventually placed in
their semi-secure Male Residential Program. Appellee-Petitioner Indiana
Department of Child Services (“DCS”) Family Case Manager (“FCM”) Sheila
Fakhreddine had recommended that Child be so placed to protect himself and
others. In February of 2016, the juvenile court held a hearing, and, in March of
2016, determined Child to be a CHINS. The juvenile court ordered that Child
be continued in his current placement at Southwest and issued a Parental
Participation Order for Parents which ordered them to participate in home-
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based therapy, engage in Child’s treatment as recommended, and engage in
family therapy with Child.
[3] As restated, both Parents contend that the juvenile court’s determination that
Child was a CHINS due to their inability to effectively parent him was clearly
erroneous. DCS and Appellee-Guardian Ad Litem Child Advocates, Inc.,
contend that the juvenile court’s adjudication is not clearly erroneous. Because
Parents have not established that the juvenile court’s judgment is clearly
erroneous, we affirm.
Facts and Procedural History
[4] Child was born on July 12, 1999, and was adopted by Parents in 2011. Prior to
his adoption, Child had been in foster care, had exhibited behavioral issues both
at home and in school, and had trouble socializing with his peers. According to
foster care specialist Rikke Hopper, Child did not exhibit behaviors that would
specifically indicate he had been sexually abused prior to his adoption. In late
July of 2015, Child ran away from the home he shared with Parents in Marion
County for the sixth time.
[5] DCS Family Case Manager (“FCM”) Sheila Fakhreddine became involved
with Child’s case on August 6, 2015, after Child was found on the street and
taken to DCS by an Indianapolis Metropolitan Police Officer. Initially, Child
would not correctly identify himself or Parents and was placed at Children’s
Bureau. On or about August 11, 2015, following an incident at Children’s
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Bureau, Child was emergency-placed at Options, which led to his identification
because Parents had placed him there for “probably about a week” in 2014. Tr.
p. 52.
[6] FCM Fakhreddine met with Parents after their identification. During the
meeting, Mother indicated that Child frequently ran away and that she and
Father had difficulty disciplining Child appropriately. Parents indicated that
Child had run away from home six times overall and four times in 2015.
Parents also indicated that they were unwilling at that time to take Child back
into the home. Parents indicated that they were not aware of Child’s history of
sexual abuse and that, if they had been aware, they would not have fostered or
adopted him because they are unable to handle such a situation. In mid-
September of 2015, Child was placed at Southwest, and Parents were referred
for home-based therapy. On November 20, 2015, the juvenile court granted
DSC’s motion to place Child in Southwest’s semi-secure residential facility
because another youth had “received bodily injury at the hands of [Child.]” Tr.
p. 22.
[7] On February 23, 2016, the juvenile court held a CHINS fact-finding hearing.
FCM Fakhreddine testified that Mother had visited with Child at Southwest
once since his placement in September of 2015 and that Father had not visited
at all. FCM Fakhreddine recommended psychological evaluations and home-
based therapy for the family. During the hearing, Parents agreed that Child
should be found to be a CHINS but argued that it should be on the basis that
Child was substantially endangering his or another’s health pursuant to Indiana
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Code section 31-34-1-6 and not due to parental neglect, inability, or refusal to
supply Child’s needs pursuant to section 31-34-1-1.
[8] At the conclusion of the hearing, the juvenile court made the following
statement on the record:
Thank you. As far as DCS’ petition is concerned, my intention is
to issue a ruling so that everyone knows today and a formal order
will be issued following today’s date with the specific findings. A
few things, the last testified information regarding the treatment
that was attempted was the Options placement in 2014 that
last[ed] a week or a month and that’s per [Mother’s] statement.
In 2015, the child runs away six times. There was no
information about treatment attempts in 2015. In fact, the
information is as [of] the filing of the petition [Mother] has
visited once, [Father] hasn’t visited at all. What’s also to be noted
is that the testimony from Ms. Hopper was that at the time
that she worked with the child he did not have these behaviors
and that was as of the adoption approximately six years ago. I
understand that there’s ramifications as far as a substantiation or
not, but at the same time I don’t feel that the testimony yielded
that parents did everything they could. I don’t feel that after
having a child for six year[s] that the therapy and the week or
month of 2014 falls within everything they could do, and when I
look at these cases when it’s either a CHINS [finding pursuant to
Indiana Code section 31-34-1-1] or a CHINS [finding pursuant to
Indiana Code section 31-34-1-6] there are benefits to the CHINS
[finding pursuant to Indiana Code section 31-34-1-6] to the
parents and I understand that, but at the same time if I were to
find that this entire situation falls in the lap of a sixteen year old,
the therapeutic ramifications of that finding I feel are more severe,
and so while I, I certainly it is certainly not my intention to
financially effect your family by any means. I understand that
that decision is somewhat mine right now, but at the same time I
have a child who needs a lot help by parents[’] own admission
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needs a lot of help, and by parents own admission that they are
not able to address right now, and so if I bring this sixteen year
old child and say, “[Child,] you are in this because you are a
danger to yourself and others”, I feel that therapeutically that the
parents run the risk of never fulfilling their role in this child’s
treatment and I feel that this is not a blame situation. Under
Section 1 it is unwilling or unable. I think absolutely unable.
Unwilling, to be honest, is yet to be determined because what I
find when I hear that only one visit has happened, no visits have
happened in six it’s actually that placement was September, so
five months, I personally have to question the willingness piece,
but I think that I’m very confident in being able to say unable and
so for all of those reasons I am not willing to find that [Child] is a
child in need of services under Section 6 and I am finding that
he’s a child in need of services under Section 1. Like I said, a
formal specific findings will be issued prior to the disposition so
that that exists and things can be done as they need to be, but I
am going to find that that’s true under Section 1. So, we’ll set the
matter for disposition in about thirty days.
Tr. pp. 66-68.
[9] On March 16, 2016, the juvenile court issued its order finding Child to be a
CHINS and findings supporting the determination, which provide, in part, as
follows:
7. [Child] did not exhibit behaviors indicative of sexual abuse
prior to being adopted by [Parents].
8. [Parents] placed [Child] at Options for “a week or a
month” prior to the filing of this cause of action.
9. Since the filing of this action, [Child] has exhibited
concerning behaviors and has been aggressive with other
residents.
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10. Since September of 2015, [Child] has been placed at
[Southwest]. [Mother] has visited [Child] once since this
placement. [Father] has not visited [Child] at all.
11. [Child’s] physical or mental condition is seriously
impaired or seriously endangered as a result of the inability,
refusal, or neglect of [Child’s] parent, guardian, or custodian to
supply [Child] with necessary food, clothing, shelter, medical
care, education, or supervision. [Parents] have been unable to
obtain treatment for [Child’s] mental health needs and have
expressed that they are unable to care for [Child] with his current
mental health needs.
12. [Child] needs care, treatment, or rehabilitation that he is
not receiving and is unlikely to be provided or accepted without
the coercive intervention of the court. [Parents] require
assistance in learning how to parent a child with [Child’s]
emotional needs. [Child] needs assistance in addressing his
history or trauma, current behavioral needs and aggression. The
intervention of the court is necessary to provide all parties with
the necessary treatment and provide [Child] with his necessary
level of care until he can safely return to the home of [Parents].
Mother’s App. pp. 126-27.
[10] Mother and Father both appeal, contending that the juvenile court erroneously
determined that Child is a CHINS on the ground that his physical or mental
condition is seriously impaired or seriously endangered as a result of the
inability, refusal, or neglect of Parents to supply him with necessary food,
clothing, shelter, medical care, education, or supervision.
Discussion and Decision
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[11] 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
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).
[12] Parents take issue only with the juvenile court’s reliance on Indiana Code
section 31-34-1-1 (“Section 1”), which 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
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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.
[13] “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.
[14] Parents do not argue with the juvenile court’s determination that Child is a
CHINS, only with the basis for that finding. Parents argue that the juvenile
court’s conclusion that Section 1 was satisfied was clearly erroneous because the
record did not contain sufficient evidence that Child’s physical or mental
condition was seriously impaired or seriously endangered due to their neglect.
Instead, Parents contend that the juvenile court should have found Child to be a
CHINS on the basis that he substantially endangered his health or the health of
another individual:
A child is a child in need of services if before the child becomes
eighteen (18) years of age:
(1) the child substantially endangers the child’s own health or
the health of another individual; 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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Ind. Code § 31-34-1-6 (“Section 6”). As mentioned, we may not reweigh the
evidence and reverse upon a showing that the juvenile court’s decision was
clearly erroneous. In re K.D., 962 N.E.2d at 1253. As such, we may only reach
the question of whether the juvenile court should have applied Section 6 if we
conclude that its determination under Section 1 was clearly erroneous.
[15] We cannot say that Parents have established that the juvenile court erroneously
applied Section 1 to this case. The record contains evidence sufficient to sustain
the juvenile court’s findings that Child did not exhibit behaviors indicating
sexual abuse before his adoption, Parents had placed Child with Options for
only a short time in 2014, Child has run away from home six times with no
further attempts by Parents to provide him treatment, Mother had visited Child
once since Child’s placement at Southwest in September of 2015, Father had
not visited Child at Southwest, Parents have indicated they are unable to
effectively care for Child currently, and Parents are in fact unable to parent
Child at this time. These findings support the juvenile court’s conclusion that
Parents are unable to currently care for Child, and are perhaps also unwilling to
do so.
[16] Both parents offer alternate interpretations of the evidence which arguably
could support a conclusion that Child’s need for care was not due to Parent’s
inability to effectively care for him. In our view, the juvenile court’s
interpretation was reasonable, even if the evidence could have potentially
supported another interpretation. Advancing alternative interpretations of the
evidence amounts to an invitation to reweigh the evidence, which we may not
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do. See id. Because Parents have failed to establish that the juvenile court’s
disposition based on Section 1 is clearly erroneous, we need not address their
claim that a disposition based on Section 6 would be more reasonable.
[17] The judgment of the juvenile court is affirmed.
Pyle, J., and Altice, J., concur.
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