In Re the Matter of: M.G., Child in Need of Services K.H. (Mother) v. Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 09 2018, 6:49 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy Karozos Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana

Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re the Matter of: M.G., May 9, 2018
Child in Need of Services Court of Appeals Case No.
49A04-1711-JC-2657
K.H. (Mother)
Appeal from the Marion Superior
Appellant-Respondent, Court, Juvenile Division
v. The Honorable Marilyn Moores,
Judge
Indiana Department of Child The Honorable Danielle Gaughan,
Services Magistrate
Trial Court Cause No.
and
49D09-1705-JC-1736
Child Advocates, Inc.,
Appellees-Petitioners

Altice, Judge.
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 Case Summary

[1] M.G. (Child) was adjudicated a Child in Need of Services (CHINS) by the

Marion Superior Court. K.H. (Mother) appeals, arguing that the Department

of Child Services (DCS) did not present sufficient evidence to support the trial

court’s CHINS determination.

[2] We affirm.

Facts & Procedural History1

[3] Child was born on August 26, 2016, to Mother and J.G. (Father). Father also

has two children with A.L.: Le.G., born December 29, 2014, and Lu.G., born

February 17, 2016. Mother, Father, A.L., and the three young children were

living together in an apartment.

[4] Alicia Fry, a permanency case manager with DCS, became involved with

Mother in December 2016. At the time, the case was classified as an informal

adjustment due to the fact that Child tested positive for THC through his

umbilical cord and Mother admitted to using marijuana during her pregnancy.

As part of an assessment, Mother revealed that she was not getting mental

health treatment although she claimed she had been diagnosed with bi-polar

disorder, ADHD, split personality tendencies, and depression. Mother

admitted that Child is afraid of her. She also informed Fry that she would put

1
Father does not appeal the CHINS determination. We therefore set forth the facts as pertinent to Mother.

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 food on the carpet to keep Child busy while she and Father were “back in the

room having alone time,” and that she would give Tylenol to Child to calm him

down. Transcript at 66.

[5] Fry visited Mother’s apartment and noted an abundance of clutter, a mattress

on the floor, old food on the carpet, and “things you wouldn’t normally find

inside the apartment like a tire sitting against the wall.” Id. at 67. Fry was

aware that Mother and Father fought regularly and to such an extent that they

had been threatened with eviction. Fry believed Mother needed services to

ensure the safety and well-being of Child. She recommended homebased

therapy, homebased case work, domestic violence training, mental health and

substance abuse assessments, and that Mother follow all recommendations of

those assessments.

[6] On May 25, 2017, Mother and Father got into a verbal argument, which turned

physical when Mother hit Father “several times.” Id. at 29. Father retrieved a

handgun, pointed it at Mother, and threatened to shoot her. Father then

pointed the gun at himself and threatened to commit suicide. A.L. and all three

children were present and witnessed the incident.

[7] IMPD Officer Theodore Cragen was dispatched to the apartment. Officer

Cragen interviewed Mother and she told him what had happened. Mother also

admitted to having mental health problems and admitted to considering suicide

every day. Officer Cragen had the opportunity to see the inside of the

apartment, which he described as cluttered. He saw on an end table, in plain

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 view, a pipe used for smoking narcotics. He also confiscated a part of the

firearm Father had pointed at Mother,2 a BB gun, and two swords. Ultimately,

Officer Cragen arrested Mother for battery and domestic battery, Father for

pointing a firearm, battery, and domestic battery, and A.L. on an active arrest

warrant for battery.

[8] Given the situation, the Marion County DCS was contacted. Kwanza

Johnson, a family case manager (FCM) with DCS arrived at the scene. FCM

Johnson spoke with Father who was in the back seat of a police vehicle. Father

told her about the fight and explained that he was “stressed out and tired of it,”

so he went to the bedroom and retrieved the gun. Id. at 48. FCM Johnson also

spoke with Mother before she was transported to jail and Mother told her that

she “was tired of dealing with DCS.” Id. at 49. FCM Johnson then went to the

second-floor apartment. As she approached, she noted a distinct marijuana

smell coming down the stairwell. Inside the apartment, she observed a mattress

up against the wall as well as a pack and play and various baby items. There

was a wet spot on the floor and Child was soaked from his shoulders to his feet

perhaps from something that had spilled. FCM Johnson took Child and placed

him in kinship care.3

2
After the incident with Mother, but before police arrived, Father dismantled the firearm and his mother
took parts of it to her house.
3
FCM Johnson also took A.L.’s two children into DCS care. A.L. later admitted that her two children were
CHINS and that coercive intervention of the court was necessary to obtain and maintain a safe and
appropriate home.

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[9] On May 29, 2017, DCS filed a CHINS petition. A fact-finding hearing was

held on August 29 and September 26, 2017. Thereafter, the court entered an

order finding Child was a CHINS. A dispositional hearing was held on

October 24, 2017, and the court entered a parental participation order the same

day. Mother now appeals. Additional facts will be provided as necessary.

Discussion & Decision

[10] CHINS proceedings are civil actions, and therefore, “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). On review, we

neither reweigh the evidence nor judge the credibility of the witnesses. Id. 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.

[11] Where the trial court issues findings of fact and conclusions thereon, we apply a

two-tiered standard of review. In re R.P., 949 N.E.2d 395, 400 (Ind. Ct. App.

2011). We consider first whether the evidence supports the findings and then

whether the findings support the judgment. Id. We will set aside the trial

court’s findings and conclusions only if they are clearly erroneous and a review

of the record leaves us firmly convinced that a mistake has been made. Id.

“Findings are clearly erroneous only when the record contains no evidence to

support them either directly or by inference.” K.B. v. Ind. Dep’t of Child Servs., 24

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 N.E.3d 997, 1001-02 (Ind. Ct. App. 2015) (citation omitted). “A judgment is

clearly erroneous if it relies on an incorrect legal standard.” Id. at 1002.

[12] To meet its burden of establishing CHINS status, DCS must prove that the

child is under eighteen 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.

Ind. Code § 31-34-1-1. Although the acts or omissions of one or both parents

can cause a condition that creates the need for court intervention, the CHINS

designation focuses on the condition of the child rather than on an act or

omission of the parents. In re N.E., 919 N.E.2d at 105. “[T]he purpose of a

CHINS adjudication is to protect children, not punish parents.” N.L. v. Ind.

Dep’t of Child Servs., 919 N.E.2d 102, 106 (Ind. 2010).

[13] Mother first argues that DCS did not prove that domestic violence is an

ongoing issue that poses a risk to Child. Mother’s argument in this regard is

based solely on the fact that the criminal charges filed against her had been

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 dismissed prior to the CHINS fact-finding hearing. She asserts that the CHINS

adjudication “may not be based solely on conditions that no longer exist.”

Appellant’s Brief at 13 (citing In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App.

2013)).

[14] Contrary to Mother’s argument, the dismissal of criminal charges does not in

and of itself alleviate the concern for Child’s well-being. DCS presented

evidence that domestic violence in the home was ongoing and that it was to

such an extent that Mother and Father were threatened with eviction.

Although the charges against Mother were dropped, such does not change the

fact that Mother and Father fight on a regular basis. With regard to the most

recent altercation, Mother and Father fought in front of Child and the other

minor children. Mother instigated the physical altercation by hitting Father

several times. The fight escalated to the point where Father retrieved a

handgun and threatened to shoot Mother before pointing the gun at himself and

threatening to shoot himself. DCS established by a preponderance of the

evidence that domestic violence issues within the home pose a risk to Child’s

well-being.

[15] Mother also argues that DCS failed to prove that her mental health posed an

ongoing risk to Child. Mother asserts that her mental health was not a basis for

the CHINS petition and that even if it was, DCS presented no evidence as to

her mental health except for her own statements that she had been diagnosed

with bi-polar disorder, ADHD, split personality tendencies, and depression.

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[16] While the domestic violence incident renewed DCS’s involvement with

Mother, DCS alleged that Child was a CHINS in part because Mother failed to

provide Child with a safe, stable, and appropriate living environment by

receiving proper mental health care. As Mother herself observes, she made

statements to DCS indicating that she had previously been diagnosed with

mental health issues. When an officer responded to this most-recent domestic

violence incident, Mother told the officer that she contemplates suicide every

day. This evidence is sufficient to support the finding that Mother’s mental

health posed an ongoing risk to Child.

[17] Finally, Mother argues that DCS did not establish that coercive intervention of

the court was needed. Mother asserts that the fact that she did not participate

in services prior to the CHINS determination cannot be the basis for the

CHINS determination because DCS failed to establish that such services were

needed for Child’s well-being.

[18] DCS recommended that Mother engage in homebased therapy, homebased

case work, domestic violence training, mental health and substance abuse

assessments, and that Mother follow all recommendations of those assessments.

DCS related each of the requested services to the facts of the situation before it.

Specifically, domestic violence training was needed to address the ongoing

domestic violence between Mother and Father, and especially the most recent

escalation thereof. Mother’s own statements to DCS as to her mental health

diagnoses as well as her statement to police that she contemplates suicide every

day supports the request for a mental health assessment. Mother’s behaviors,

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 including giving Child Tylenol to calm him down or leaving food on the floor

to keep Child occupied, demonstrate the need for homebased therapy and

homebased case work. Prior to the CHINS determination, Mother refused to

participate in such services because she felt they were unnecessary. DCS has

established the need for the services and that coercive intervention of the court

was necessary to secure Mother’s compliance with the requested services.

[19] In sum, our review of the record leads us to conclude that the evidence

sufficiently supports the court’s findings, and those findings support the court’s

CHINS determination.

Judgment affirmed.

Najam, J. and Robb, J., concur.

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