MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 09 2019, 8:54 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rory Gallagher Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: August 9, 2019
B.G. (Minor Child), Child in Court of Appeals Case No.
Need of Services, 19A-JC-4
and Appeal from the Marion Superior
Court
C.G. (Mother),
The Honorable Marilyn A.
Appellant-Respondent, Moores, Judge
The Honorable Beth L. Jansen,
v. Magistrate
Trial Court Cause No.
The Indiana Department of 49D09-1808-JC-2132
Child Services,
Appellee-Petitioner
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 1 of 14
[1] C.G. (Mother) appeals the juvenile court’s order finding her child, B.G. (Child),
to be a child in need of services (CHINS). Mother argues that the evidence is
insufficient to support the CHINS adjudication. Finding the evidence
sufficient, we affirm.
Facts
[2] Mother has a history with the Department of Child Services (DCS). In 2012,
DCS filed a petition alleging that Mother’s two oldest children were CHINS
because of Mother’s untreated mental health issues.1 In June 2016, Mother
admitted that her three older children were CHINS because she needed
“assistance in maintaining stable mental health and suitable and appropriate
housing.” Appellant’s App. Vol. II p. 93. Mother failed to participate with
court-ordered services in that case and, in May 2017, the juvenile court changed
the permanency plan for her oldest three children from reunification to
adoption. In June 2017, DCS filed a petition to terminate the parent-child
relationship between Mother and at least one of those children. The status of
the termination case is not revealed by the record; however, the CHINS case
remained open throughout the instant proceedings.
[3] Mother gave birth to Child on June 10, 2018. Two days later, DCS removed
Child from Mother’s care and custody and placed her in relative care. DCS
filed a petition alleging Child to be a CHINS. On August 1, 2018, Child’s
1
The record does not reveal the outcome of this proceeding.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 2 of 14
Father confined Mother and one of her other children in a bedroom. Mother
called the police. Father threw an object into the wall, resulting in a hole in the
wall, pushed Mother into the closet door, and may have injured the child.
When police arrived, he answered the door with a knife in his hand. Father,
who is not participating in this appeal, was incarcerated on charges stemming
from that incident at the time of the CHINS factfinding in this case.
[4] The CHINS case proceeded to a factfinding hearing on August 9, 2018.
Partway through the hearing, the juvenile court granted DCS’s motion to
continue over Mother’s objection, but did not set a new hearing date. On
August 15, 2018, Mother filed a motion to dismiss the CHINS petition based
on a failure to comply with statutory deadlines. The juvenile court granted the
motion to dismiss on August 23, 2018.2
[5] On August 24, 2018, DCS filed a new petition alleging Child to be a CHINS
based on Mother’s untreated mental health issues, a failure to participate with
service providers in her other open CHINS case, and the August 1 domestic
violence incident.3 The factfinding hearing took place on October 22, 2018.
[6] At the hearing, Mother admitted that she had been diagnosed with borderline
personality disorder, bipolar disorder, schizoaffective disorder, and severe
2
Mother asks that we take judicial notice of the record in the dismissed CHINS case; DCS objects. By
separate order, we grant the motion, but only to the extent of the dates of the relevant court proceedings—
which, in any event, is all Mother was requesting.
3
Mother explicitly stated that she is not making a res judicata argument that the second CHINS petition is
impermissibly based solely on the allegations of the first CHINS petition. Appellant’s Mtn. to Strike p. 5.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 3 of 14
depression. Dr. Mukesh Desai, a staff psychiatrist with Midtown Mental
Health, testified that he had diagnosed Mother with schizoaffective disorder
and borderline personality disorder in July 2018. He had prescribed Mother
Latuda, a mood stabilizer, but she failed to return for follow-up appointments
in September and October to check on the effectiveness of the medication. She
had not refilled the Latuda prescription and it would have run out before the
factfinding hearing.
[7] Dr. Desai testified that it is critical that Mother return for follow-up
appointments, follow a medication management plan, and regularly attend
individual therapy. Her borderline personality disorder, if untreated, causes her
to be volatile and unpredictable. And her schizoaffective disorder causes
moods that alternate between depressed and manic; it also causes auditory or
visual hallucinations. A person who has these co-existing conditions but fails to
treat them will become gravely compromised in their ability to parent. Patients
with these mental health conditions lose emotional control when experiencing
relatively minor frustrations and moments of ambiguity, both of which are
frequent parts of parenting children, especially infants.
[8] At the appointment when Dr. Desai prescribed Latuda for Mother, she became
extremely agitated because she wanted a different medication; he had to call
security before she began to calm down. At an October 1, 2018, child and
family team meeting, Mother became extremely agitated and erratic, storming
out repeatedly and making statements suggesting to some of those present that
she planned to harm or kill herself. Mother’s family case manager (FCM)
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 4 of 14
reported that at a home visit three days before the factfinding, Mother became
very agitated, could not control her behavior, and lost emotional control when
something did not go the way she had hoped. The FCM explained that Mother
was “explosive in a manner that was concerning.” Tr. Vol. II p. 109.
[9] Mother’s home-based therapist testified at the factfinding hearing, explaining
that the service was closed unsuccessfully after she began refusing to work with
him. He was concerned about Mother’s episodes of paranoia, inability to
remember information, and episodes of extreme agitation. He recommended
that she undergo a mental health evaluation.
[10] Mother visited with Child inconsistently from June 11 through August 6, 2018.
Simon Gelaye was the visit facilitator, reporting that Mother often displayed
concerning behavior. She fell asleep while Child was sleeping in her arms and
failed to support the newborn infant’s head properly. She struggled to calm
down before and during parenting time. Gelaye considered ending at least one
visit early because Mother struggled to calm herself. Mother missed multiple
visits because she failed to wake up on time, and Gelaye became concerned that
she would not be able to wake up if Child needed care or attention. Many visits
ended early.
[11] Sheryl Alexander supervised parenting time between Mother and Child
between August and October 2018. Alexander observed Mother getting
agitated with Gelaye on one occasion and observed combative behaviors at
child and family team meetings, but did not observe any troubling behavior
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 5 of 14
during visits. Alexander observed that Mother was nurturing and attentive to
Child and testified that she did not have any safety concerns about Mother’s
parenting. She recommended that Child be placed with Mother. Alexander
admitted that if Mother’s mental health issues were untreated, she would have
safety concerns about Mother’s parenting abilities, but she chose to believe
Mother’s statements that she was receiving treatment.
[12] Mother testified about the domestic violence incident between herself and
Father. She explained that she called the police because the injured child had
asked Father to leave and he refused. She denied that she had ever been in a
domestic violence incident with Father and testified that she did not “have
plans” to live with Father “at this time.” Id. at 41, 53. Mother would not say
that she would never live with Father again. Id. at 53.
[13] Mother began to exhibit paranoia about Father. In September 2018, Mother
called the police and reported that she thought Father had asked someone to
come watch her home and vandalize her car. Mother told Alexander that they
needed to be aware of their surroundings when they left a visit together because
Father had sent people to follow them. Alexander asked Mother if she had a
protective order and Mother replied that she did not. Alexander found this
behavior concerning enough that she reported it to a DCS supervisor.
[14] On December 4, 2018, the juvenile court found Child to be a CHINS. In
relevant part, it found as follows:
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 6 of 14
10. Mother does not demonstrate an awareness of the current
state of affairs. Mother has issues processing and her
testimony is convoluted and shows that she has mental
health issues. Mother does not appreciate that she was
court ordered to participate in services for her older
children. Mother erroneously believes that she
successfully completed services for the older children yet at
one time their plan of permanency was changed to
adoption.
11. Mother[’s] testimony is convoluted and contradictory and
the Court finds her incredible.
12. Mother has been diagnosed with personality disorder,
schizo-affective disorder, [and] severe depression. These
are long-standing mental health issues that are not
successfully addressed as of yet.
***
15. Mother denies that there was any domestic violence
between herself and the Father, which shows that she is
not attuned to reality. . . .
16. The inability of Mother to recognize domestic violence
and its toxic effects on all involved pose a danger to the
safety and well-being of any child placed in her care.
***
18. Mother has had multiple service providers under the JC
cause for her older children and she has not complied with
any service providers.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 7 of 14
19. Although Mother has the ability to meet with mental
health professional and she does on occasion, her mental
health is concerning for dealing with any type of conflict
and would make parenting an infant difficult.
20. Mother’s current claim of willingness to participate in
services and mental health treatment does not satisfy this
Court’s concerns about the necessity of coercive
intervention especially in light of this Court’s prior
findings for older children and Mother’s continued denial
as to this petition.
***
24. With Mother’s mental health diagnosis, the concerns are
Mother’s volatile presentation and how it affects the ability
to parent. Mother’s ability to safely parent will be
significantly compromised by her mental health issues and
her inability to meet with service providers and satisfy
them. The ability to safely parent could be compromised
because of the stresses that parenting presents.
***
33. [The Guardian ad Litem (GAL)] does not believe it is in
[Child’s] best interests to be placed in her Mother’s care
because of Mother’s unstable mental health and the
serious safety risks that [it] presents. [The GAL] has seen
concerning erratic behaviors by Mother which preclude
her from properly parenting this child and the older
children as well.
***
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 8 of 14
36. [Mother’s erratic and volatile behavior] is concerning
because much of parenting is dealing with the frustrations
[that] children present.
37. Mother has NOT been cooperative or compliant and has
not shown that she is medically compliant and has not
shown that she is addressing her mental health issues.
38. . . . Although Ms. Alexander stated she has no safety
concerns for Mother’s parenting[,] she has seen Mother’s
behavior become problematic when confronted with
frustrating situations, which lead this Court to have safety
concerns for this child in the care of Mother.
Appellant’s App. Vol. II p. 93-95. On December 4, 2018, the juvenile court
held a dispositional hearing and ordered Mother to participate with home-based
therapy, complete an assessment for domestic violence services and follow all
recommendations, and either complete a psychological assessment or provide a
copy to DCS of a psychological evaluation that had been completed in the
preceding twelve months. Mother now appeals.
Discussion and Decision
[15] 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.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
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 9 of 14
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).
[16] 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:
(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.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 10 of 14
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).
[17] Here, Mother argues that the evidence was insufficient to establish that Child’s
physical or mental condition was seriously endangered as a result of Mother’s
mental health issues or of the domestic violence in the family.4 5
[18] Turning first to Mother’s mental health issues, she insists that the juvenile court
focused impermissibly on a concern that Mother’s mental health could seriously
endanger Child in the future rather than a finding that Child is currently
seriously endangered. We agree with Mother that this would, indeed, be an
impermissible concern on which to base a CHINS adjudication. Here,
however, the record is replete with evidence showing that Child would be
4
DCS spends much of its brief responding to an argument that Mother did not make—namely, that the
juvenile court erred in considering Mother’s history of mental illness, DCS involvement, and domestic
violence. Appellee’s Br. p. 19-27. Mother has moved to strike this portion of the brief. By separate order, we
deny that motion, as DCS is free to frame the issues as it wishes. We agree with Mother, however, that this
portion of DCS’s brief seems to be a proverbial ship passing Mother’s actual argument in the night.
5
To the extent that Mother may be arguing that the evidence did not show that the coercive intervention of
the court was necessary, we note that the fact that she was failing to participate with court-ordered services in
her other CHINS case dramatically undercuts this argument. Moreover, beyond her own testimony, which
the trial court found to be not credible, there is no evidence in the record that she was participating with
mental health treatment of her own volition.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 11 of 14
seriously endangered, right now, if she were placed in Mother’s care and
custody.
• Mother had an open CHINS case at the time of this factfinding for her
three older children. In that case, she had failed to participate with
services, her children were not placed with her, and their plan of
permanency had been changed to adoption.
• Mother has multiple, serious mental health diagnoses. Beyond her own
claims, which the juvenile court explicitly found to be not credible, there
is no evidence in the record that she is currently receiving treatment,
including either medication or therapy, for those conditions.
• A patient with those co-existing conditions who fails to treat them is
gravely compromised in her ability to parent because she will lose
emotional control when experiencing minor frustrations.
• There are multiple examples in the record of Mother losing emotional
control, including episodes of volatility, agitation, and explosive
behavior. The most recent incident occurred just days before the
factfinding hearing.
• Mother’s first visitation supervisor reported that Mother’s behavior
during visits was concerning. She struggled to calm herself down before
and during parenting time. She fell asleep holding Child and failed to
support the infant’s head properly. She missed multiple visits because
she failed to wake up on time.
• Mother’s second visitation supervisor did not have concerns about
Mother’s behavior during visits, but she did observe volatile behavior
from Mother on other occasions. She also testified that, while Mother
had reported to her that she was receiving mental health treatment, she
would have safety concerns about Mother’s parenting if her mental
health issues were untreated.
• The GAL had been working with Mother’s older children in the other
CHINS case and believed that Child would be seriously endangered if
placed in Mother’s care based on Mother’s erratic behavior and unstable
mental health.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 12 of 14
While Mother seeks to minimize this evidence by conceding that she sometimes
“lose[s] her temper, raise[s] her voice, or address[es] others in a demanding
tone,” appellant’s br. p. 15, we are not persuaded with this characterization of
the record, nor does this comply with our standard of review. Additionally, in
emphasizing the more positive testimony of the second visitation supervisor
while overlooking much of the more negative testimony, Mother asks us to
reweigh the evidence, which we may not do.
[19] This Court has noted that a parent’s mental illness, in and of itself, does not
necessarily present a serious danger to the child. In re E.Y., 93 N.E.3d 1141,
1146 (Ind. Ct. App. 2018). Here, however, it is not the mere fact of Mother’s
mental illness that supports the CHINS finding. Instead, it is the manifestation
of that mental illness, including volatile and explosive behavior and an inability
to handle minor frustrations with emotional control. Unless and until Mother
is in regular mental health treatment that is helping her to regulate her
emotions, we have little difficulty finding that the juvenile court reasonably
concluded that Child would be seriously endangered if placed in Mother’s care
and custody. See In re K.P.G., 99 N.E.3d 677, 684 (Ind. Ct. App. 2018) (noting
that an inability or unwillingness to address mental illness when it creates an
unsafe environment is proof of serious endangerment).
[20] With respect to the domestic violence issue, we note that it appears that Mother
was a victim and called the police to report the altercation, leading to Father’s
arrest and incarceration. We would certainly not find this incident, in and of
itself, sufficient to support a CHINS adjudication. What concerned the juvenile
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 13 of 14
court, however, was that at the factfinding hearing, Mother denied that any
domestic violence had ever occurred between her and Father and, while she
stated that she did not have plans to live with Father again, she refused to rule
out the possibility categorically. It was Mother’s “inability . . . to recognize
domestic violence and its toxic effects on all” that formed part of the basis of
the CHINS finding, rather than the incident itself or her decision to report it.
Appellant’s App. Vol. II p. 93. While this evidence, alone, would not have
sufficed to support a CHINS finding, we find that it was not erroneous for the
juvenile court to consider it along with all the other evidence in finding that
Child was a CHINS.
[21] It is undeniable, based on the record, that Mother and Child have a bond and
that Mother genuinely loves her daughter. We hope that the services offered in
the CHINS case will enable Mother to reach a place where she can safely and
appropriately parent her child.
[22] The judgment of the juvenile court is affirmed.
Vaidik, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019 Page 14 of 14