In Re the Matter of: M.B. (Minor Child) and L.A. (Mother) v. The 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 Jul 24 2019, 7:28 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
Talisha Griffin Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re the Matter of: July 24, 2019

M.B. (Minor Child) Court of Appeals Case No.
19A-JC-253
and
Appeal from the Marion Superior
L.A. (Mother), Court
Appellant-Respondent, The Honorable Marilyn Moores,
Judge
v. The Honorable Gael Deppert,
Magistrate
The Indiana Department of Trial Court Cause No.
Child Services, 49D09-1810-JC-2638
Appellee-Petitioner,

and

Child Advocates, Inc.,

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 Guardian Ad Litem.

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Respondent, L.A. (Mother), appeals the trial court’s determination

that her minor child, M.B. (Child), is a Child in Need of Services (CHINS).

[2] We affirm.

ISSUES
[3] Mother presents us with two issues on appeal, which we restate as:

(1) Whether the trial court’s findings are supported by the evidence; and

(2) Whether the trial court’s conclusion that Child is a CHINS is clearly

erroneous.

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 FACTS AND PROCEDURAL HISTORY
[4] Child was born in April 2004 to Mother and R.B. (Father). 1 Mother became

involved with child welfare authorities in December 2015 when she and Child

were living in Illinois. Mother required short-term, in-patient care to address

her mental health, and Child was placed in foster care. Child was returned to

Mother in April 2016, and the case was closed in March 2017. By that time,

Mother and Child were living in public housing in Illinois. In May 2017,

Mother was evicted from her public housing due to her failure to recertify to

maintain her placement. She and Child became homeless and lived in a series

of shelters as Mother relocated to Anderson, Indiana, and Lexington,

Kentucky. By the spring of 2018, Mother and Child were in Cincinnati, Ohio,

where they lived in a bus station for approximately two weeks. Mother and

Child were kicked out of the bus station during the day, so Child slept on a

bench. Child was arrested at the bus station for an offense, the nature of which

is not clear from the record. Thereafter, Mother and Child moved to

Indianapolis, where Mother placed Child in a series of respite care programs.

Mother resided in shelters, and when she reached her time limit at a shelter, she

stayed with friends because she “didn’t have any other option.” (Transcript p.

22).

1
Father is not a party to this appeal.

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[5] By June 2018, Child could no longer reside at his last respite care placement,

and the Department of Child Services (DCS) was alerted. Child was placed in

foster care. A CHINS proceeding was instigated which was dismissed because

a hearing was not held within the statutorily-mandated timeframe. On October

23, 2018, after the CHINS was dismissed, the trial court ordered Child to be

returned to Mother’s care. On October 24, 2018, Mother appeared at Child’s

school seeking to take Child with her. After confirming that Mother was

allowed to take Child, the school social worker removed Child from class.

Child refused to go with Mother, which bothered Mother. Due to Child’s

refusal to go with Mother, Child’s school social worker alerted DCS.

[6] On October 25, 2018, the trial court granted DCS’s request to file a petition

alleging that Child was a CHINS because Mother had failed to provide safe,

stable housing for Child, Mother’s unemployment and housing instability

demonstrated an inability to provide Child with basic care and necessities, and

Mother had failed to take Child back into her care after the previous CHINS

had been resolved in her favor. Child was placed in foster care. As part of its

provisional orders, the trial court ordered supervised parenting time for Mother.

[7] On December 11, 2018, the trial court conducted a fact-finding hearing on the

CHINS petition. At the time of the hearing, Mother resided at the Wheeler

Mission. Mother was on a waiting list for HIP housing, but she had not

secured any other housing for the family. Her plan for Child’s housing if he

were returned to her was to place him in a housing program where they could

have increased contact. Mother acknowledged at the hearing that housing

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 instability, along with other factors, had impacted Child’s mental health.

Mother claimed to have received three offers of employment, but she had not

been employed since July 2017. Mother had been diagnosed with PTSD and

an anxiety disorder. Mother was prescribed medication for her mental health

diagnoses which she was no longer taking. Family Case Manager Jonathan

Bush (FCM Bush), who had been with the family since the inception of the first

CHINS, testified that Mother had not presented him with any records

indicating that she had been released by a physician from her medications.

[8] When Mother testified at the fact-finding hearing, she left the witness stand

multiple times to hand documents directly to attorneys in the courtroom.

Eventually, the trial court requested that she remain seated during her

testimony. At times Mother continued to talk despite her counsel’s

admonishment to cease offering testimony without a question before her.

Mother spoke out during the testimony of other witnesses, and she commented

negatively when testimony was unfavorable to her, despite the requests of her

counsel to stop.

[9] FCM Bush had observed throughout his dealings with Mother that, when she

was frustrated or angry, Mother would stop the conversation, walk out, or

blame others for her situation. Mother had twice left hearings in this matter

before court was adjourned. Approximately two weeks before the fact-finding

hearing, Mother was referred to services by DCS to address her housing and

employment issues. Mother had not reached out to the provider to seek

assistance, and she did not respond when the service provider contacted her to

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 arrange meetings. Mother had not had parenting time due to her failure to

respond in a timely manner to the facilitator and due to Child’s lack of desire to

meet with Mother until she was stabilized. FCM Bush recommended Child’s

continued placement outside Mother’s care. He also recommended that

Mother receive homebased services to address her housing and employment

issues and that Mother undergo a psychiatric evaluation.

[10] Child testified at the fact-finding hearing that he thought that it was important

to have stable housing because “when you’re stable you can focus, you can do

more, you can have . . . well, you can have your own life more essentially

th[a]n when you’re not stable cause when you’re not stable you gotta worry

about more.” (Tr. p. 56). Child remembered a time in his life when Mother

had stable housing for them and noted that conditions for the family had

changed significantly since 2013. Child recognized that Mother at times

experienced “random outbursts” and that she had walked out of court twice.

(Tr. p. 58). Child, who was fourteen years old at the time of the fact-finding,

did not wish to return to Mother’s care until she had achieved some stability.

[11] On December 23, 2018, the trial court issued an order declaring Child a CHINS

in which it made the following relevant findings of fact and conclusions of law:

8. Sometime prior to 4/15/16, and for an unknown period of
time, [Child] had been placed in foster care through an open
child welfare case in Illinois on the basis of mother’s mental
health concerns. [Child] returned to her care 4/15/16; the
Illinois case closed 3/29/17 after about fifteen months of a
supervision plan.

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 9. [Mother] is diagnosed primarily with Post Traumatic Stress
Disorder and anxiety disorder, and is not currently medicated but
with no medical documentation to support [Mother] being off
medications for her mental health and well-being. Prior to the
fact-finding, [Mother] found a new provider from IU Health, Ms.
Jan Rheinhart for counseling, and [Mother] hopes for family
counseling to occur with [Child] because “of the amount of time
my son has been in foster care.”

10. [Mother] and [Child] left Illinois after they were “forcefully
evicted” from public housing in Illinois for “failure to recertify.”

11. At the time of the fact-finding 12/11/18, [Mother] has
resided in a homeless shelter in Indianapolis, Indiana, “off and
on” for the past six to seven months, otherwise staying with
friends, and with “no other option” available to [M]other
regarding housing for herself.

12. Prior to living in a homeless shelter in Indianapolis, Mother
and [Child] lived in a domestic violence shelter in Lexington,
Kentucky, where they lived for seven to eight months to ten [sic]
months.

13. Prior to living in a domestic shelter in Lexington, Kentucky,
[Mother] and [Child] lived in a domestic violence shelter in
Anderson, Indiana, because, [M]other states, “there are domestic
violence issues with regard to [Father].”

14. [Mother] and [Child] have slept in a bus station for a couple
weeks when [Mother] and [Child] left Kentucky for [Mother] to
interview for a “logistics account executive position” in
Cincinnati, Ohio.

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 15. [Mother] has accepted a couple job offers from different
companies since leaving Anderson, Indiana, but she has never
received a start date from any of the companies.

16. In late April 2018, [Mother] found respite care for [Child]
with the Children’s Bureau, as there was no room for him to stay
with [M]other in a local shelter in Indianapolis, Indiana.
Because of time restrictions with the respect [sic] care program,
[Mother] relocated [Child] to a Safe Families program in
Indianapolis, Indiana, from early May 2018 to early to mid-June
2018. [Mother] then arranged for [Child] to stay at StopOver
program in Indianapolis, Indiana, for [Child] to receive
counseling services [Mother] thought [Child] needed and which
StopOver made available.

17. [Child] has been placed in foster care through 49D09-1806-
JC-001620, and in the same foster care placement through
CHINS cause, above, where he is thriving; [Child] requests his
continued placement there until [Mother] “get(s) (herself)
together.”

18. Homemaker aid services are in place for [Mother] through
this CHINS cause, above, but [Mother] has not responded to the
service providers’ texts about where or when [Mother] can meet.
[Mother] has not reached out in any communication with the
homemaker aid service provider for housing or employment
assistance.

19. At the time of the filing of the petition 10/24/18, and at the
time of the CHINS fact-finding 12/11/18, [Mother] has no stable
housing and is without employment to care for [Child] and
provide basic necessities for [Child].

****

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 21. [Child] has refused to participate in any parenting time with
[Mother] or [Father] through the duration of this CHINS cause,
above, as he wants [M]other “to be stable” before he is reunified
with her so that he does not have to be uprooted again.

22. [Mother’s] conduct during proceedings in this CHINS cause,
above, calls into question her mental well[-]being: At the fact-
finding 12/11/18, [Mother] left the witness stand a couple times,
with the record running, despite admonishment by her attorney,
to retrieve paperwork; without prompting, [Mother] reached over
the witness stand at different points in the fact-finding to hand
papers to the DCS attorney; [Mother] left the courtroom prior to
conclusion of the [c]ourt’s hearing on two prior and separate
occasions despite admonishment by the [c]ourt; the [FCM Bush]
reports that he has observed on more than one occasion [Mother]
speaking to herself, in the presence of no one.

(Appellant’s App. Vol. II, pp. 95-97). The trial court concluded that Child was

endangered by Mother’s inability to maintain employment and stable housing

and that Mother’s mental health contributed to that inability. The trial court

found that Child needed stable housing and “other necessary requirements”

that he was not receiving due to Mother’s inability to sustain housing,

employment, and her mental health. The trial court concluded that Child was

unlikely to have those needs met without the coercive intervention of the court.

[12] Mother now appeals. Additional facts will be provided as necessary.

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 DISCUSSION AND DECISION
I. Standard of Review

[13] Mother challenges the evidence supporting the trial court’s findings of fact and

its ultimate conclusion that Child is a CHINS. Our standard of review of a trial

court’s CHINS determination is well-settled: we do not reweigh the evidence or

judge witness credibility. In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574,

577-78 (Ind. 2017). We consider only the evidence which supports the trial

court’s decision and the reasonable inferences to be drawn from that evidence.

Id. at 578. In addition, where, as here, the trial court has entered findings of

fact and conclusions of law, we exercise a two-tiered review. Matter of K.P.G.,

99 N.E.3d 677, 681 (Ind. Ct. App. 2018), trans. denied. First, we consider

whether the evidence supports the findings, and, second, we determine whether

the findings support the judgment. Id. We will reverse a trial court’s CHINS

determination only if it is clearly erroneous and a review of the record leaves us

firmly convinced that a mistake was made. Id. A CHINS determination is

clearly erroneous “if the record facts do not support the findings or if it applies

the wrong legal standard to properly found facts.” In re D.J., 68 N.E.3d at 578

(internal quotation marks omitted).

II. Findings of Fact

[14] The trial court entered twenty-two findings of fact in its CHINS order. Mother

challenges the evidence supporting the following three findings:

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 7. [Child] refused to return to the custody of [Mother] on
10/23/18 because he did not want to go with her if she did not
have stable housing to provide him.

11. At the time of the fact-finding 12/11/18, [Mother] has
resided in a homeless shelter in Indianapolis, Indiana, “off and
on” for the past six to seven months, otherwise staying with
friends, and with “no other option” available to [M]other
regarding housing for herself.

22. [Mother’s] conduct during proceedings in this CHINS cause,
above, calls into question her mental well[-]being . . . .

(Appellant’s App. Vol. II, pp. 95-97).

[15] Mother argues that finding 7 is unsupported by the evidence because the date of

the incident was October 24, 2018, and not October 23, 2018, as found by the

trial court. However, Child’s school social worker testified that the incident

took place on October 23, 2018, and so, contrary to Mother’s argument, there is

evidence in the record supporting the trial court’s finding that Child refused to

go with her on October 23, 2018. In support of her claim otherwise, Mother

cites a portion of the fact-finding hearing wherein Mother spoke out during the

social worker’s testimony to contradict her. Even if the trial court had

mistakenly found the date of the incident to be October 23, 2018, the date of the

incident does not alter the substance of the finding, and Mother does not

explain how she was prejudiced by the claimed error.

[16] Mother’s claim as to finding 11 is that she testified at the fact-finding hearing

that she had recently started working on her permanent housing plan and that

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 she was working with HIP to procure housing. In light of this testimony, she

argues that the trial court’s finding that she had no other housing options

available to her was clearly erroneous. Mother’s argument misapprehends the

nature of the trial court’s finding which was based on her housing history over

the previous seven months, not her chances of future housing. Mother’s own

testimony showed that she had been living in shelters and that when her time

limit was up at a shelter, she stayed with friends because she had “no other

option.” (Tr. p. 22). Although she may have recently undertaken new efforts

to procure permanent housing, at the time of the fact-finding hearing, none of

those options had materialized. Therefore, this finding was also supported by

the evidence.

[17] As to finding 22, Mother argues that her behavior in court has “no correlation

in determining whether her mental health is sound.” (Appellant’s Br. at 13).

Mother does not challenge the accuracy of the trial court’s findings regarding

her specific conduct; rather, she maintains that those acts do not reflect upon

her mental health. However, Mother’s acts of leaving the witness stand after

being directed not to by her attorney, handing documents to the DCS attorney

directly, and leaving the courtroom before hearings were adjourned

demonstrated poor impulse control on Mother’s part, which does implicate her

mental health. The trial court reasonably inferred from Mother’s conduct that

she may have mental health issues to address. Pursuant to our standard of

review, we do not second guess such reasonable inferences by the trial court.

See In re D.J., 68 N.E.3d at 578.

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[18] Mother’s challenge to the trial court’s finding as part of finding 22 that FCM

Bush observed Mother talking to herself is equally unavailing. FCM Bush

testified that he had observed Mother talking to herself when no one else was

around, and, therefore, this finding was supported by the evidence and is not

clearly erroneous. See id. Mother directs our attention to FCM Bush’s

testimony that he assumed that, when he saw her talking to herself, she was

practicing what to say in court, but this is evidence that does not support the

trial court’s determination, and, pursuant to our standard of review, we do not

consider it. Id.

II. Conclusions of Law

[19] Mother also asserts that the trial court’s conclusions of law are unsupported by

the evidence. We begin by noting that “[n]ot every endangered child is a child

in need of services, permitting the State’s parens patriae intrusion into the

ordinarily private sphere of the family.” In re S.D., 2 N.E.3d 1283, 1287 (Ind.

2014). In order to meet its burden to establish that a child is a CHINS, the

State is required to show that a child is under the age of eighteen,

(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.

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 Ind. Code § 31-34-1-1. Thus, the statute requires that the State prove “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

at 1287. The State is required to make this showing by a preponderance of the

evidence. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans. denied.

A. Endangerment

[20] Mother first argues that the State failed to prove that Child was endangered.

The purpose of the CHINS statute is to protect children. In re C.K., 70 N.E.3d

359, 364 (Ind. Ct. App. 2016), trans. denied. The paramount interest in a

CHINS proceeding is the best interest of the child, not the guilt or innocence of

the parents. See Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). While

the CHINS statute requires that the State show that a child is seriously

endangered, it does not require that a court wait until tragedy has occurred

before intervening. In re C.K., 70 N.E.3d at 364. Rather, a child is a CHINS

when he is endangered by a parent’s action or inaction. In re S.D., 2 N.E.3d at

1287.

[21] The trial court determined that Child was endangered by three main factors—

housing instability, Mother’s unemployment which rendered her unable to

provide housing and basic necessities, and Mother’s mental health. The State

showed that the family had not had stable housing since being evicted from

their public housing in Illinois in May 2017. Thereafter, Mother and Child

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 lived in a series of shelters as Mother relocated to Anderson, Lexington, and

Cincinnati. Just before arriving in Indianapolis, Mother and Child lived in a

bus station for two weeks where Child was arrested and, at times, was forced to

sleep on the street. Upon arrival in Indianapolis, Mother placed Child in a

series of temporary respite care programs while she stayed at a shelter and with

friends. Although Mother had placed her name on a waiting list for permanent

housing, as of the time of the fact-finding hearing, she had not procured stable

housing for Child. Her plan, if Child were returned to her, was to place Child

in another housing program where he would continue to be out of her care.

Child testified that he felt less secure when he lived in shelters, and he did not

wish to return to Mother’s care until he had a stable place to live with her. The

trial court reasonably concluded from this evidence that Child’s physical and

mental health were endangered by Mother’s inability to procure stable housing.

[22] In addition, Mother had been unemployed since July 2017. There was no

evidence in the record that Mother or Child received any other form of income

or food benefit. The reasonable inference to be made from these facts is that

Child’s other basic needs, such as food and clothing, were being met from other

sources apart from Mother. Although Mother’s efforts in accessing resources

was commendable, the fact remains that for an extended period of time she

herself was not providing Child with his basic needs, and she had essentially

already placed Child outside of her care. Evidence of Mother’s poor impulse

control, as manifested by her behavior in court and in her dealings with FCM

Bush, and her untreated PTSD and anxiety disorder supported the trial court’s

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 conclusion that her mental health contributed to her inability to obtain

employment, despite a number of claimed job offers.

[23] On appeal, Mother argues that she did not endanger Child because she

consistently looked for stable housing and employment and was successful at

meeting Child’s needs, despite having no home or employment. In support of

that argument, Mother relies on In re S.M., 45 N.E.3d 1252, 1255-56 (Ind. Ct.

App. 2015), wherein this court noted that the mere fact that a parent is

unemployed or the mere fact that a family is living in a shelter does not de facto

make a child a CHINS, where the record is devoid of evidence of a child’s

needs going unmet. In that case, the State alleged that the children were

CHINS primarily because the meconium of Mother’s newest child had tested

positive for marijuana. Id. at 1256. We found that the State had failed to prove

that the children were CHINS despite evidence of Mother’s marijuana use

where the evidence also showed that the children always had a home, sufficient

food, and sufficient clothing. Id.

[24] We find that this case is distinguishable from In re S.M. in that Child has not

always had a home or even a place in a shelter when he was in Mother’s care.

Mother was not simply unemployed, nor was she simply temporarily unable to

provide housing for child. Child’s case represents a confluence of long-term

housing instability, unemployment, and untreated mental health diagnoses

which, together, supported a reasonable conclusion that Child was endangered

sufficient to find him to be a CHINS. Mother’s argument that Child testified

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 that he did not feel endangered is simply an invitation for us to reweigh the

evidence of the case, which we will not do. See In re D.J., 68 N.E.3d at 577-78.

B. Coercive Intervention

[25] Mother also argues that the trial court’s determination that Child required the

coercive intervention of the State to have his needs met was not supported by

the evidence. Mother’s main contention on this issue is that the evidence

reflected her success at accessing housing and basic necessities for Child

through programs without the State’s intervention. However, despite these

efforts, the evidence showed that Mother did not secure stable housing or

independently provide basic necessities for Child for over a year, Child was

unwilling to reside with her in shelters, and that her plan for Child if he were

not declared a CHINS was to place him in yet another housing program outside

of her care. Mother had been referred to services in the previous CHINS with

which she was not compliant at the time that CHINS proceeding was

dismissed, and she had not complied with the services referred to her in the

instant CHINS proceedings to address her housing instability and

unemployment. Mother had also apparently ceased taking her medication

without physician approval, which indicates that she will not address her

mental health without State intervention. In light of this evidence, we conclude

that the trial court’s conclusions that Child was endangered and had needs

which would not be met without the coercive intervention of the State were not

clearly erroneous. See id. at 578.

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 CONCLUSION
[26] Based on the foregoing, we conclude that the trial court’s findings were

supported by the evidence and that its conclusion that Child was a CHINS was

not clearly erroneous.

[27] Affirmed.

[28] Bailey, J. and Pyle, J. concur

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