MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Sep 30 2019, 11:08 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel G. Foote 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 the Matter of L.C. (Child in September 30, 2019
Need of Services) Court of Appeals Case No.
19A-JC-839
and
Appeal from the Marion Superior
R.C. (Father), Court
Appellant-Respondent, The Hon. Mark Jones, Judge
The Hon. Rosanne Ang,
v. Magistrate
Trial Court Cause No.
Indiana Department of Child 49D15-1811-JC-2775
Services,
Appellee-Petitioner,
and
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Child Advocates, Inc.,
Guardian Ad Litem.
Bradford, Judge.
Case Summary
[1] L.C. (“Child”) was born to R.C. (“Father”) and S.E. (“Mother”1; collectively,
“Parents”) in July of 2018. In November of 2018, the Indiana Department of
Child Services (“DCS”) petitioned to have Child adjudicated a child in need of
services (“CHINS”) following a suicide attempt by Mother and based on
allegations that neither Mother nor Father could ensure Child’s safety. Parents
both have a history of mental illness, and Father unilaterally stopped taking
medication to address his major depressive disorder and has not sought medical
treatment since mid-2018. Following an evidentiary hearing in February of
2019, the juvenile court adjudicated Child to be a CHINS and, inter alia,
ordered that Child be placed with Father’s parents, with whom he and Child
were already residing. Father contends that (1) two of the juvenile court’s
findings are contrary to the evidence, (2) two of the juvenile court’s conclusions
of law are clearly erroneous, and (3) the juvenile court abused its discretion in
removing Child from Father’s care. Because we disagree, we affirm.
1
Mother does not participate in this appeal.
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Facts and Procedural History
[2] Child was born to Mother and Father on July 25, 2018. In November of 2018,
Parents and Child were living with Mother’s other child, M.E., and Father’s
parents (“Parental Grandparents”) in their home. On November 13, 2018,
DCS filed a CHINS petition alleging that Child was a CHINS as to Mother
because Mother had failed to provide Child with an appropriate living
environment, had untreated mental-health issues, and had slit her wrist in front
of M.E. in an attempt to kill herself. As for Father, DCS alleged that he had
not demonstrated an ability to ensure Child’s safety and well-being while she
was in Mother’s care.
[3] On November 14, 2018, the juvenile court held an initial/detention hearing and
authorized Child’s continued placement in Father’s care on a temporary in-
home trial visit. Also that day, Father requested home-based therapy and
informed the juvenile court “of several medical issues he is currently dealing
with[.]” Appellant’s App. Vol. II p. 50. The juvenile court ordered Father to
participate in home-based therapy. After DCS became involved and removed
M.E.,2 Mother moved out of Paternal Grandparents’ home. On December 7,
2018, Mother admitted that Child and M.E. were CHINS because Mother
needed assistance in addressing her mental health. The juvenile court took
Mother’s admission under advisement.
2
As of the disposition of this case, M.E. remains in a foster placement.
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[4] Around the same time, Jennifer Colasessano began providing home-based
therapy to Father and determined that he suffered from major depressive
disorder. Colasessano began working with Father to address his disorder and
“emotion management, emotion expression, stress management,” past
traumatic experiences, anxiety, and substance use. Tr. Vol. II p. 78. Father
also began receiving home-based case management through Tatyana Terrell in
December of 2018. Terrell met with Father once or twice a week initially.
Father’s goals were to stay organized with a schedule, and to provide for
Child’s needs.
[5] On February 5, 2019, Parents were involved in an altercation with each other.
Father picked Mother up from the hospital where she was seeking treatment
after “she had taken an entire prescription pill bottle” and, on the way home,
they began to argue. Tr. Vol. II p. 109. Father threatened Mother “three or
more times that he would wreck the truck” and Mother either had to push the
steering wheel or scream in order to prevent a crash. Father also threatened to
kill Child to prevent Mother from seeing her and said that he could avoid jail if
he killed himself as well.
[6] On February 15, 2019, the juvenile court held an evidentiary hearing regarding
Father. At the time of the hearing, Child was still placed with Father in
Paternal Grandparents’ home. Mother testified that Father has threatened to
kill himself if she left him and that she had safety concerns regarding Child
being with Father. DCS family case manager Dominique Cox (“FCM Cox”)
also expressed concerns, testifying that Father’s mental-health issues remained
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unresolved. (Tr. 63). FCM Cox testified that Father disclosed that he has had
mental-health diagnoses in the past for which he used to be medicated and is
receiving home-based therapy to address his anxiety and depression.
[7] Colasessano testified about Father’s history of mental-health issues, noting that
he has been diagnosed with major depressive disorder and had experienced “a
cycle of anxiety and depression[.]” Tr. Vol. II p. 84. As for addressing his
mental-health issues, Father admitted that he had stopped taking his medication
and that it had “been awhile” since he had sought mental-health services,
perhaps last in June or July of 2018. Tr. Vol. II p. 114. When asked whether
he was currently seeing a doctor to address the issues with his medication, he
said “no[.]” Tr. Vol. II p. 117. Terrell testified that she had not successfully
closed out Father’s care and that he still needs work.
[8] As it happened, neither Colasessano nor Terrell had been aware before the
hearing that Father had tried to wreck the car with Mother in it or that Father
had threatened to kill Child. Colasessano testified that suicidal or homicidal
ideations could be indicative of mental-health issues, and Terrell testified that
“[i]t would be a huge concern” if Father had done what Mother said he did.
Tr. Vol. II p. 101.
[9] After the evidentiary hearing, the juvenile court adjudicated Child to be a
CHINS as to Father. The juvenile court also ordered that Child’s placement be
changed to Paternal Grandparents, authorized Father to continue living in their
home, and ordered that his time with Child be “strictly supervised[.]”
Appellant’s App. Vol. II p. 109. On March 15, 2019, the juvenile court entered
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its CHINS order, dispositional decree, and parental participation orders. The
juvenile court’s CHINS order provides, in part, as follows:
3. The DCS became involved with [Child] after [Mother]
attempted suicide in front of [Child]’s four-year-old sibling.
[Mother] was taken to Community North Hospital for
treatment. [Child] was in the home when this incident
occurred.
4. During the pendency of this cause of action, [Child] was
placed in the care of [Father].
5. [Father] has been consistently engaged in home[-]based case
management and home[-]based therapy since the end of
December.
6. The Department of Child Services is concerned about
[Father]’s mental health. On February 5, 2019, an incident
occurred between [Father] and [Mother] while the two were
in a vehicle. During an argument between the two, [Father]
attempted to crash the vehicle multiple times. During this
incident, [Father] also threatened to kill [Child, Mother] and
himself.
7. [Father] has a long history of mental health needs. [Father
has] been diagnosed with Major Depressive Disorder,
struggles with anxiety and has ceased taking his prescribed
medication. [Father]’s last contact with his mental health
provider was over nine months ago.
8. [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. [Father] has untreated mental
health needs which have led him to threaten to take the life of
his child.
9. [Child] needs care, treatment, or rehabilitation that the child
is not receiving[] and is unlikely to be provided or accepted
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without the coercive intervention of the Court. [Father] has
ceased his mental health treatment. The coercive intervention
of this Court is necessary to compel [Father] to engage in this
needed treatment.
Appellant’s App. Vol. II p. 138.
[10] The juvenile court continued Child’s relative placement with Paternal
Grandparents with the permanency plan being reunification with Parents. In
Father’s parental-participation order, the juvenile court ordered Father to
continue home-based therapy and home-based case management, complete a
psychological evaluation and follow all recommendations, and complete
community mental-health services and follow all recommendations.
Discussion and Decision
[11] Indiana Code section 31-34-1-1 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
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.
[12] The purpose of a CHINS adjudication is to “protect children, not [to] punish
parents.” In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 580–81 (Ind.
2017) (citations omitted). DCS bears the burden of proving that a child is a
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CHINS by a preponderance of the evidence. Ind. Code § 31-34-12-3; see also In
re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The Indiana Supreme Court has
stated that
[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.
In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (footnote omitted). Father
contends that (1) two of the juvenile court’s findings are contrary to the
evidence, (2) the juvenile court’s conclusions that Child’s physical or mental
condition is seriously impaired or endangered and that Child needs care or
treatment that Father is unable or unwilling to provide without coercive
intervention are clearly erroneous, and (3) the juvenile court abused its
discretion in removing Child from Father’s care.
I. Challenged Findings
[13] Father contends that the juvenile court’s finding regarding the February 5,
2018, incident is unsupported by the record. Mother, however, testified that
during the incident, Father threatened Child’s life and tried to wreck the car
several times on the way home. Regarding the threat, Mother testified that
[a]t one point he had stated that he was not going to allow me to
see [Child]. When I told them that by law—when I told him that
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by law he cannot do that. He said, “I can if I kill her.” I said,
“You will go to jail.” He said, “Not if I kill us both.”
Tr. Vol. II p. 76. While Father testified that the altercation occurred differently,
the juvenile court was under no obligation to credit his version of events and
did not. See, e.g., Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)
(“[F]actfinders are not required to believe a witness’s testimony even when it is
uncontradicted.”). Father is requesting that we reweigh the evidence, which we
will not do.
[14] Moreover, the record contains ample evidence to support a finding that Father
had a history of mental-health issues that has yet to be adequately addressed.
FCM Cox testified that Father disclosed that he has received diagnoses of
anxiety and depression, for which Father was prescribed medication that he
unilaterally stopped taking. Colasessano testified about Father’s history of
mental-health issues, noting that he has been diagnosed with major depressive
disorder and anxiety. Father admitted that he had unilaterally stopped taking
his medication and that he had not sought mental-health services since mid-
2018. Father also admitted that he was not currently under the care of a doctor.
Father is again asking us to reweigh the evidence, which we will not do. See In
re K.D., 962 N.E.2d at 1253.
II. Challenged Conclusions
A. Child’s Physical or Mental Condition Is
Seriously Impaired or Endangered
[15] Father challenges the juvenile’s conclusion that Child’s physical or mental
condition is seriously impaired or endangered. As mentioned, the juvenile
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court found that Father threatened to kill Child ten days before the evidentiary
hearing to prevent Mother from seeing her, which certainly supports a
conclusion that her physical condition is endangered. A juvenile court need not
wait until a tragedy occurs before adjudicating a Child a CHINS. In re R.S., 987
N.E.2d 155, 158 (Ind. Ct. App. 2013). Father has not established that the
juvenile court’s decision to treat this threat seriously was clearly erroneous.
[16] Moreover, as mentioned, the record contains ample evidence that Father suffers
from unresolved mental-health issues. Father’s home-based therapist diagnosed
him with major depressive disorder, and, although he had been taking medicine
to help him cope with his mental-health issues, he had stopped by the time DCS
became involved. Father’s unresolved mental-health issues also support a
conclusion that Child’s condition is endangered.
B. Care is Unlikely to Be Provided
Without Court Intervention
[17] Father challenges the juvenile court’s conclusion that he is unlikely to address
his mental-health issues without court intervention. “[T]he government is
permitted to forcibly intervene in a family’s life only if the family cannot meet a
child’s needs without coercion[.]” Matter of E.K., 83 N.E.3d 1256, 1261 (Ind.
Ct. App. 2017), trans. denied. Generally, while “the question is whether the
parent[] must be coerced into providing or accepting necessary treatment for
their child[,]” id. at 1262, the question here is whether Father must be coerced
into getting the care that he needs in order to be a good parent to Child.
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[18] While it is true that Father is participating in home-based counseling, he is
under court order to do so, and there is no indication that he would seek such
counseling on his own. We find it of little help to Father that he requested the
counseling from the juvenile court, because the request was made only after
DCS became involved. Moreover, Father admitted that he had unilaterally
stopped taking medication to treat his mental-health issues, was not currently
under a physician’s care, and had not seen a doctor since June or July of 2018.
Simply put, there is no compelling evidence that Father would be doing
anything at all to address his mental-health issues without court intervention,
and the record indicates that he is not currently doing enough, even with court
intervention. The juvenile court’s conclusion in this regard is not clearly
erroneous.
III. Removal from Father’s Care
[19] Finally, Father contends that the juvenile court abused its discretion in ordering
the removal of Child from his care. Indiana Code section 31-34-20-1(a)
provides, in part, that
if a child is a child in need of services, the juvenile court may
enter one (1) or more of the following dispositional decrees:
(1) Order supervision of the child by the department.
[….]
(3) Remove the child from the child’s home and authorize the
department to place the child in another home, shelter care
facility, child caring institution, group home, or secure private
facility. Placement under this subdivision includes
authorization to control and discipline the child.
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[20] The juvenile court ordered that Child be placed with Father’s parents and that
Father could continue to reside with his parents but could only have supervised
visitation with Child. Father contends that this disposition seems to be based
exclusively on the fact that Father and Father’s mother had arranged a
babysitter for Child during the evidentiary hearing. Suffice it to say that we see
nothing in the record to support this contention. The juvenile court’s concerns
about Child remaining in Father’s care are clear from the record and have
nothing to do with a babysitter: Father’s threat to kill Child and his
unaddressed mental-health issues. Given these concerns, we cannot say that
the juvenile court abused its discretion in crafting a dispositional order that
limits Father’s contact with Child to supervised visitation, at least for the time
being.
[21] We affirm the judgment of the juvenile court.
Vaidik, C.J., and Riley, J., concur.
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