MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
May 29 2020, 9:37 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Mark Small Monika Prekopa Talbot
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of A.G. (Minor May 29, 2020
Child), Child in Need of Court of Appeals Case No.
Services, 20A-JC-298
J.L. (Mother), Appeal from the Montgomery
Circuit Court
Appellant,
The Honorable Harry A. Siamas,
v. Judge
Trial Court Cause No.
Indiana Department of Child 54C01-1910-JC-272
Services,
Appellee.
Brown, Judge.
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[1] J.L. (“Mother”) appeals the trial court’s order adjudicating A.G. to be a child in
need of services (“CHINS”). We affirm.
Facts and Procedural History
[2] A.G. was born in August 2016 and is the child of Mother and R.G. (“Father”).
In November 2018, A.G. was seen in an emergency room following a car
accident and several dental problems were discovered. Dr. Blair Jones-
Bumgardner (“Dr. Jones”), a dentist and pediatric dental specialist, determined
A.G. had severe early childhood caries and developed a treatment plan. Dr.
Jones removed certain teeth, placed crowns, and noted there were still four
smaller cavities which needed to be addressed. 1 The dental office later
contacted Mother, Mother asked if all the treatment performed was necessary,
she was informed it was necessary because A.G. had a high chance of an
abscess and serious infection, and Mother later indicated she would be taking
A.G. to another dentist.
[3] On October 17, 2019, the Indiana Department of Child Services (“DCS”) filed
a petition alleging A.G. was a CHINS and that on October 14, 2019, DCS
received a report that A.G. was screaming in pain due to the condition of her
teeth and was taken to the emergency room where she received a prescription
for the infection. Also on October 17, 2019, the court held an initial hearing at
which Father stated he believed A.G. needed immediate care. Zoey Rowe, an
1
During the treatment, A.G. swallowed a crown and it was determined by radiograph that the crown was in
the child’s stomach and would pass.
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assessment worker with DCS, testified that, in October 2019, DCS received a
report that A.G. had been prescribed an antibiotic at Riley Children’s Hospital
because she had an abscess in her mouth. She indicated that Mother told the
dentist that she was not giving A.G. the antibiotic. She further indicated the
dentist had stated that the abscess, if not treated, could lead to cheek swelling,
an abscess in the brain, or possibly death from a blood infection.
[4] Rowe indicated she had a conversation with Mother about the importance of
the antibiotic. When asked about Mother’s response, Rowe testified: “She at
first you know she laughed and said she won’t die and then she said I’ll just give
it to her right now, but it was already after we had had this conversation
multiple times in the past even with our last assessment.” Transcript Volume II
at 12-13. Rowe indicated Mother did not give the antibiotic to A.G. when she
was there. When asked if she had a further conversation with Mother about
administering the antibiotic, Rowe replied: “She told me that she had not given
her the antibiotic at that point. That was the contact that I had with her last
night she was swearing at me on the phone while I was dropping her daughter
off with her father.” Id. at 13. She indicated she removed A.G. from Mother
on October 16, 2019, and placed her with Father. She also indicated Father
lived in Iowa, drove to Indiana every two weeks for visitation, and would
temporarily be staying in Indiana. The court found that Father was an
appropriate placement for A.G. and ordered Father, in consultation with DCS,
to obtain appropriate dental care for her.
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[5] On October 18, 2019, Father took A.G. to an appointment with Dr. Jones.
Following a consultation with Father, Dr. Jones performed treatment which
included the extraction of three teeth due to infection or large decay and the
placement of crowns on two teeth.
[6] On January 6, 2020, the court held a hearing on the petition alleging A.G. was
a CHINS at which it heard testimony from Dr. Jones, family case manager
Griffin Flavin (“FCM Flavin”), Father, Mother, and the court appointed
special advocate (“CASA”).
[7] Dr. Jones testified that A.G.’s primary care physician had a food log for A.G.
due to her low weight and had recommended a dental evaluation. Dr. Jones
testified “[s]o there [were] four teeth left to complete treatment a year ago when
mom declined to come back to our office,” “[o]f those four teeth that were not
completed, two of them had abscesses and then two of them needed stainless
steel crowns,” and “[m]eaning that over the course of the year that mom did
not continue with treatment the decay got progressively worse and two actually
became infected.” Id. at 38. When asked about the danger of having an
untreated abscess, Dr. Jones replied “[h]ospitalization or death,” “[c]hildren
especially with a vulnerable immune system and things of that nature,
hospitalizations and need for IV antibiotics are very, very high,” and “I recently
just had a child waiting on a root canal very similar to the infection [A.G.] had
actually had to go to the hospital for IV antibiotics because infections can
spread so rapidly in children.” Id. at 39. On cross-examination, Dr. Jones
indicated A.G.’s need for emergency dental care has been addressed.
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[8] FCM Flavin testified that he was assigned to the case in October 2019, that
Mother indicated she had attended Cummins but did not sign a release of
information, and that, when he asked her why she would not release the
information to DCS, she said she did not trust its assessment and she had been
diagnosed “with PTSD and I believe anxiety.” Id. at 65. He testified that he
supervised eleven or twelve visits between Mother and A.G. and at one point
Mother told A.G. that she could not trust anything Father said. He testified
DCS was concerned that, if A.G. were returned to Mother, there would be a
resurgence of a lack of dental care and Mother would not follow through with
doctors’ recommendations.
[9] Mother testified she believed in an all-natural way of raising a child and the
foundation of her belief system was that “[t]he food that you eat, the exercise
you do, what you do stimulating your body, your spirit, your entire system
relies on your whole health, everything you do, fruits and vegetables, basically.”
Id. at 77. When asked “where is the basis for that belief? Is it religious, is it
spiritual, what is it, where does it come from,” she answered “[a] little bit of all
of it philosophical, religious.” Id. She indicated her belief system was Christian
and her denomination was Methodist. Mother testified she was opposed to
vaccines but not to antibiotics. She indicated she made appointments with
other dentists but did not attend and testified “I had gotten a job, car broke
down, lots of bad things in the same situation. [A.G.] was just never unhealthy
and I just kept an eye on it.” Id. at 87. She indicated she allowed radiographs
even though she did not believe in them, she had limited financial resources,
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earned about $7,000 a year, and worked at a newspaper and a restaurant. On
cross-examination, when asked about the basis for her beliefs about “fluoride,
antibiotics and such,” Mother answered “the basis of this is that I was on
Xanax and pain pills from ten to twenty-eight years old and it destroyed my
brain health and since then I have learned to live a proper life without coca cola
and Totino’s pizzas and drugs to fulfill just waking up in the morning.” Id. at
90-91. When asked if she had mental health issues, she answered: “Before I
met [Father] I had generalized anxiety disorder. After that relationship, post-
traumatic stress disorder.” Id. at 100. She indicated she was treating those
issues through exercise, acupuncture, and therapy with Cummins Mental
Health.
[10] DCS’s counsel argued that A.G. had a prescription from the hospital to treat
her infection, Mother was not giving the prescription to A.G., and DCS had to
remove A.G. so that she would receive treatment and follow-up care. She
further argued that, even if Mother had certain beliefs, there was an exception
for when a child is placed in a life-threatening situation and that A.G. would
not be safe and Mother would not participate in necessary services without the
intervention of the court.
[11] The CASA testified that Mother’s “decisions for medical care are eccentric at
best and do pose a danger to the child should she become ill.” Id. at 111. The
CASA also testified she did not think it would be safe, at this point, to return
the child to Mother’s care.
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[12] The court stated Mother had a right to her belief system until A.G. was placed
“in very serious jeopardy and that’s what happened here.” Id. at 112. It also
found “[t]he dental risk is over for now, but it wasn’t taken care of by mother it
was taken care of by father and the DCS” and it had “to assess whether the
coercive intervention of the court is necessary going forward to ensure that the
child will receive appropriate medical and dental care.” Id. at 113.
[13] The court issued an order finding A.G. to be a CHINS and providing:
l. Mother’s actions seriously endangered her daughter, refusing to take
care of child’s dental issues.
2. In November 2018, [M]other took child to Dr. Jones for dental care
but her reaction when child swallowed the crown requiring another x-
ray by not following up to complete the 4 cavities was neglect: child had
developed abscesses in the untreated cavities in November 2019.
3. Doctor believed that if the abscesses had not been treated, child was
at risk of dying.
4. Mother’s beliefs placed the child in serious jeopardy.
5. Father saw the condition of the child’s mouth and asked [M]other to
get the child dental care and mother said she would take care of it.
6. Child’s dental issues have been resolved by the care of [Father] and
DCS; therefore, coercive intervention of the Court is needed.
7. Mother cannot put aside her beliefs to keep the child safe. She needs
services to educate her and rehabilitate [M]other to protect the child.
8. [M]other’s mental health issues prevent her from understanding or
parenting appropriately.
Appellant’s Appendix Volume II at 13-14. An entry in the chronological case
summary indicates the court held a disposition hearing, ordered that A.G.
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should continue placement with Father under DCS supervision, approved
recommended services, stated the permanency plan is reunification and
Mother’s visitation would continue to be supervised at this time, and set a
review hearing.
Discussion
[14] Mother claims the trial court erred in concluding A.G. was a CHINS. She
argues that her rights to religion and conscience were violated as the court did
not properly consider Ind. Code § 31-34-1-14, “[t]here is no statement in the
statute that placing a child in serious ‘jeopardy’ qualifies that child to be in need
of services,” and she believes in an all-natural approach to health. Appellant’s
Brief at 19. She also argues the reasons for removal had been resolved by the
time of the hearing.
[15] We do not reweigh the evidence or judge the credibility of witnesses and
consider only the evidence which supports the trial court’s decision and
reasonable inferences drawn therefrom. In re S.D., 2 N.E.3d 1283, 1286-1287
(Ind. 2014), reh’g denied. We apply the two-tiered standard of whether the
evidence supports the findings and whether the findings support the judgment.
Id. 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 custodian to supply the child with
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necessary food, clothing, shelter, medical care, education, or
supervision:
(A) when the parent, guardian, or custodian is financially able
to do so; or
(B) due to the failure, refusal, or inability of the parent,
guardian, or custodian to seek financial or other reasonable
means to do so; 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 a court to 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. The purpose of a CHINS adjudication is to protect children. Id.
[16] Ind. Code § 31-34-1-14 provides:
If a parent, guardian, or custodian fails to provide specific medical
treatment for a child because of the legitimate and genuine practice
of the religious beliefs of the parent, guardian, or custodian, a
rebuttable presumption arises that the child is not a child in need of
services because of the failure. However, this presumption does not
do any of the following:
(1) Prevent a juvenile court from ordering, when the health of a
child requires, medical services from a physician licensed to
practice medicine in Indiana.
(2) Apply to situations in which the life or health of a child is in
serious danger.
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Although an adult generally cannot be forced to undergo medical treatment
against his religious principles, a parent’s decision to refuse lifesaving medical
treatment for a minor child must yield to the State’s interest in protecting the
health and welfare of the child. Schmidt v. Mut. Hosp. Servs., Inc., 832 N.E.2d
977, 982 (Ind. Ct. App. 2005).
[17] To the extent Mother does not challenge the trial court’s findings of fact, the
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver
of the argument that the findings were clearly erroneous), trans. denied.
[18] With respect to Mother’s argument regarding Ind. Code § 31-34-1-14, although
the trial court’s order did not use the term “serious danger,” the court found
that Mother’s beliefs placed A.G. in “serious jeopardy” and also found that her
actions “seriously endangered” A.G., see Appellant’s Appendix Volume II at 13,
and it is clear the court considered the statutory exception and determined that
DCS met its burden. The evidence as set forth above and in the record,
including the testimony of Dr. Jones, supports the court’s finding, and we
cannot say reversal is required on this basis.
[19] As for the argument the reasons for A.G.’s removal had been resolved, the
record shows that A.G. received treatment following the intervention of DCS
and the court. The court specifically found that Mother cannot put aside her
beliefs to keep A.G. safe and needs services so that she can protect A.G. and
that her mental health issues prevent her from parenting appropriately. To the
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extent Mother invites us to reweigh the evidence and judge the credibility of
witnesses, we are unable to do so. See In re S.D., 2 N.E.3d at 1286. The court
was able to consider Mother’s actions and omissions over time and ability to
protect A.G. The court’s findings and adjudication of A.G. as a CHINS are not
clearly erroneous.
[20] For the foregoing reasons, we affirm the trial court’s order.
[21] Affirmed.
Najam, J., and Kirsch, J., concur.
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