MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 31 2019, 9:00 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kyle D. Gobel Curtis T. Hill, Jr.
Collier Gobel Homann LLC Attorney General of Indiana
Crawfordsville, Indiana Erik J. Bryant
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: A.M. and J.M., May 31, 2019
Minor Children, Court of Appeals Case No.
18A-JC-3015
D.M., Father,
Appeal from the Montgomery
Appellant, Circuit Court
v. The Honorable Harry Siamas,
Judge
The Indiana Department of Trial Court Cause Nos.
Child Services, 54C01-1808-JC-223
Appellee. 54C01-1808-JC-224
Brown, Judge.
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[1] D.M. (“Father”) appeals the trial court’s order determining that A.M. and J.M.
are children in need of services (“CHINS”). Father raises one issue which we
revise and restate as whether the evidence is sufficient to support the court’s
determination. We affirm.
Facts and Procedural History
[2] A.M. who was born in May 2008 and J.M. who was born in March 2012 are
the children of Father and S.M. (“Mother”). The court entered a decree of
dissolution in April 2014 which dissolved the marriage of Father and Mother
and ordered that Father have sole custody of the children and Mother have
supervised visitation.
[3] On August 6, 2018, the Department of Child Services (“DCS”) filed petitions
alleging the children were CHINS. The petitions alleged in part that DCS
received a report on August 3, 2018, the children were homeless and Father
was using methamphetamine, the family had been the subject of two prior
reports in 2018 and nineteen reports since 2010, and the children were found
living in a tent in the backyard of a family friend, R.J., who said she was the
only person feeding the children. They further alleged Father’s whereabouts on
August 3, 2018, were unknown, DCS made several attempts to contact him,
Mother stated that Father physically assaulted her on August 2, 2018, and a
family case manager observed bruises on Mother. According to the petitions,
A.M. said Mother and Father were in a fight and Father accidentally hit him,
J.M. said that Father punched him on the leg, while staying in a tent at their
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grandmother’s yard the children were not allowed to go into the home to
shower, Father stated Mother abuses prescription pills or is using
methamphetamine and should not be around the children but that he had been
allowing her around them anyway, and Mother failed a drug screen for
methamphetamine. The children were removed with the assistance of law
enforcement.
[4] In September 2018, DCS filed a petition to introduce statements made by the
children. On October 3, 2018, the court entered an order that the children’s
statements may be introduced and admitted into evidence at the factfinding
hearing. On October 4, 2018, the court held the CHINS factfinding hearing at
which DCS presented the testimony of R.J., DCS assessor Zoey Rowe, and
family case managers Melinda Tyler (“FCM Tyler”) and Charlene Colley
(“FCM Colley”). Father testified that he had not used drugs in the past two
years and had never used methamphetamine. He indicated that he moved to
R.J.’s sometime in mid-July, and when asked how long he had been living there
before DCS came and removed the children, he answered “[p]robably for about
two weeks.” Id. at 76. He testified that he stayed in the tent and that they all
had access to the shower, bathrooms, and food. When asked where he had
been living previously, Father indicated his mother’s house and testified that he
had a tent in her yard, that he slept in it a lot of times but not all of the time,
and that the children slept inside and had everything they needed at the house
including a shower and food. Father also indicated that he had a pending
charge for theft as a level 6 felony.
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[5] On October 19, 2018, the court entered an Order on Fact Finding Hearing
which found the children were CHINS and made the following findings of fact:
1. Father took the children to [R.J.’s] home to live in a tent for 2
weeks; [R.J.] was a complete stranger to the children.
2. Both children witnessed domestic violence between [Mother]
and [Father].
3. Mother stated [Father] beat her.
4. Mother used drugs and was under the influence.
5. Mother is the non-custodial parent; and [Father] allowed her
around the children knowing she was using drugs and under the
influence of drugs.
6. [A.M.] was accidently struck in the nose by [Father] during a
domestic violence incident between [Mother] and [Father].
7. Father has hit [J.M.] on the leg.
8. The children witnessing domestic violence is traumatic to them
and causes them harm.
9. When DCS interviewed [A.M.], he was not appropriately
dressed.
10. Due to [Father’s] mistrust of the DCS, he has refused to
cooperate with the DCS.
Appellant’s Appendix Volume 2 at 42-43. The court subsequently issued a
dispositional order.
Discussion
[6] The issue is whether sufficient evidence supports the trial court’s determination
that the children are CHINS. Father argues that the court’s findings that the
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children were living in a tent, that Mother stated that he beat her, and that he
allowed her to be around the children when she was under the influence were
clearly erroneous. He argues that Mother was incarcerated at the time of the
factfinding hearing, Mother’s addiction issues did not endanger the children,
and the findings regarding the domestic incidents, A.M.’s attire, and his
decision to decline services do not rise to the level necessary to support a
CHINS adjudication. The State responds that the record supports the
challenged findings and the court’s adjudication is not clearly erroneous.
[7] In reviewing a trial court’s determination that a child is in need of services, we
neither reweigh the evidence nor judge the credibility of witnesses. In re S.D., 2
N.E.3d 1283, 1286-1287 (Ind. 2014), reh’g denied. Instead, we consider only the
evidence that supports the trial court’s decision and reasonable inferences
drawn therefrom. Id. at 1287. As to issues covered by findings, we apply the
two-tiered standard of whether the evidence supports the findings and whether
the findings support the judgment. Id. We review remaining issues 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.
[8] Ind. Code § 31-34-1-1 provides:
A child is a child in need of services if before the child becomes
eighteen (18) 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
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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.
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). Rather, a
child is a CHINS when he or she is endangered by parental action or inaction.
Id. A CHINS determination establishes the status of a child alone. In re N.E.,
919 N.E.2d 102, 106 (Ind. 2010). Because a CHINS determination regards the
status of the child, a separate analysis as to each parent is not required in the
CHINS determination stage. Id. The conduct of one parent can be enough for
a child to be adjudicated a CHINS. Id. The purpose of a CHINS adjudication
is to protect children, not punish parents. Id. The resolution of a juvenile
proceeding focuses on the best interests of the child, rather than guilt or
innocence as in a criminal proceeding. Id.
[9] The record reveals that R.J. testified that, in July 2018, Mother asked her if
Father and the children could camp in her backyard for a few days and that she
met the children when they came to stay with her. She indicated that she had
met Mother approximately eighteen months earlier at the house of an
acquaintance, and had been in jail with her. She testified that J.M. stayed in
the tent with Father most of the time and that a lot of times A.M. stayed with
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her. When asked “[s]o [J.M.] stayed with his dad in the tent and [A.M.] stayed
with you many times,” she replied “[y]eah, a few times. They were only there
three to five days, but [A.M.] stayed inside the majority of the time.”
Transcript Volume II at 36. She testified that she fed them and Father did not
provide her with any food or money to feed them. When asked if Father said
where he was going with J.M. when he would leave, she answered “[h]e would
go scrap or whatever.” Id. at 37. She indicated that Mother came to her home
a couple of times during that period and that Mother and Father had left the
day before DCS removed the children and the children had stayed overnight
with her. She indicated the children were able to enter her house and shower
when they wanted and that she had not met Father before he moved into her
yard.
[10] Rowe, the DCS assessor, testified that she drove around Crawfordsville on
August 3rd looking for Mother because no one could find her and that Mother
was found at an apartment and appeared to be under the influence. According
to Rowe, Mother said that she had relapsed and that Father had beat her the
previous day, and she appeared to have fresh marks and bruises on her arms
and legs.
[11] FCM Tyler testified that she received a report of domestic violence on June 29,
2018, and made contact with Father who declined to allow her to interview the
children. She testified she received another report on July 6th that Mother was
on methamphetamine. She indicated that she reached out to the paternal
grandmother, who informed her that the children were living in a tent in the
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woods with Father. According to FCM Tyler, Mother met with her at the
probation department in mid-July and stated she saw the children at least twice
a week, that she was able to interact with them, and that Father knew that she
was using methamphetamine. Mother told her that Father would not allow her
to interview the children and the children were at their grandmother’s, but
FCM Tyler was unable to confirm that Father lived with the grandmother.
FCM Tyler testified she received another report on August 3rd that the children
had been left at R.J.’s home without Father being present and there were
concerns that the children lacked provisions. She indicated she visited R.J.’s
home, took photographs of the tent, and interviewed the children separately.
[12] According to FCM Tyler, she introduced herself to A.M. who stated that
Father did not like the government. A.M. described an incident in which
Mother jumped into the back of a truck while Father was driving and that his
grandmother was driving behind them and the children were in her vehicle.
A.M. said that they had stayed in a tent in his grandmother’s backyard, he did
not have access to a shower, and she would not let him in the house to shower.
A.M. also said there was a fight in which Father had tried to hit Mother and
“he had gotten in the middle and [Father] had hit and bloodied his nose.” Id. at
57. A.M. referred to Mother as a psycho. She testified that A.M. was dressed
in oversized clothing, was not wearing shoes or socks, and had sores on his feet
and calves. She also testified that J.M. said that his parents argue and yell and
that Father hit him. FCM Tyler indicated that Mother called R.J.’s home,
spoke with FCM Tyler, asked multiple times that the children be placed in
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foster care, and stated that Father “had taken her to the woods the day before
and stripped her naked and beat her for twelve hours and she was terrified for
her children’s safety.” Id. at 59. She testified the decision was made to detain
the children because Father could not be located and he had not returned to the
home after a significant period of time.
[13] FCM Colley testified that she became involved on August 3rd, the day of the
removal, and subsequently set up visits with Father, that she tried visitation in
the community, and that Father “was erratic and absolutely inappropriate so
now we go to an office setting” where there is a security officer and a system in
place to contact the police. Id. at 65. She testified that she asked him to
participate in services and provide drug screens and that “he said absolutely
not.” Id. at 66. She indicated that she had seen Mother in jail twice and
Mother indicated that she and Father used to use heroin, then she was on
methamphetamine, and that, when she was released from incarceration, Father
was on methamphetamine. According to FCM Colley, Mother indicated that,
on August 2, 2018, “he shot her up and he used meth.” Id. at 67. She believed
Mother had pending drug charges. She further testified that Mother “talked
about the twelve hour beating that she received from [Father]” and “the truck
incident where . . . the kids were present . . . and she was it was either pushed or
maybe even jumped out, they were fighting her and [Father] took off.” Id. at
67-68. Mother also “talked about a time at Circle K . . . she was in a pair of
underwear, a t-shirt and a bra and he had beat her,” “she mouthed back to
him,” and “that created more beatings.” Id. at 68.
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[14] To the extent Father’s argument invites us to reweigh the evidence and reassess
witness credibility, we are unable to do so. See In re S.D., 2 N.E.3d at 1286.
We conclude the evidence as set forth above and in the record supports the trial
court’s findings and its determination that the children are in need of services
and the coercive intervention of the court is necessary.
[15] For the foregoing reasons, we affirm the trial court’s determination that the
children are CHINS.
[16] Affirmed.
May, J., and Mathias, J., concur.
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