In the Matter of: L.G. (Minor Child), Child in Need of Services, and M.S. (Mother) & C.G. (Father) v. The Indiana Department of Child Services (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 Feb 17 2017, 8:50 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 APPELLANTS ATTORNEYS FOR APPELLEE
Carlos I. Carillo Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of: February 17, 2017
L.G. (Minor Child), Child in Court of Appeals Case No.
79A05-1607-JC-1558
Need of Services,
Appeal from the Tippecanoe
and Superior Court
M.S. (Mother) & C.G. (Father), The Honorable Faith A. Graham,
Appellants-Respondents, Judge
Trial Court Cause No.
v. 79D03-1511-JC-252

The Indiana Department of
Child Services,
Appellee-Petitioner

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 Baker, Judge.

[1] M.S. (Mother) and C.G. (Father) appeal the trial court’s order finding their

child, L.G. (Child), to be a child in need of services (CHINS). Parents argue

that there is insufficient evidence supporting the CHINS adjudication. They

also argue that the trial court erred by denying their request for in-home

placement during the CHINS case. Finding sufficient evidence and no error,

we affirm.

Facts
[2] Mother and Father are parents to two children: Child, born in March 2014,

and B.G. (Sibling). Child had marijuana in her system at the time of her birth

and, at the time the Department of Child Services (DCS) became involved with

the family, appeared noticeably thin and small for her age.

[3] Sibling was born in March 2015. She was born three weeks prematurely and

had marijuana in her system at the time of her birth. When the hospital

released her after her birth, Sibling weighed six pounds. Nearly eight months

later, at the time of her death, she weighed eleven pounds.

[4] On Monday, November 16, 2015, DCS received a report alleging that Sibling

had died while in Parents’ care and that Parents had neglected Child and

Sibling. Parents stated that Sibling had died late Saturday evening or early

Sunday morning, but they did not seek medical care for Sibling and did not take

her body to the hospital until the morning of Monday, November 16. DCS

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 removed Child from Parents’ care and custody that same day and placed her in

foster care.

[5] A DCS investigator observed Sibling’s body at the hospital. Her body appeared

very small for her age and underweight, and her head appeared larger than her

body. Her stomach appeared bloated, her skin looked loose, and she did not

have body fat. The FCM opined that Sibling was malnourished and

dehydrated.

[6] Dr. Griggs, the coroner who performed Sibling’s autopsy, testified that the body

was underdeveloped, poorly nourished, dehydrated, and appeared younger than

seven months old. Her condition “would certainly have alerted I think a

reasonable person . . . .” Tr. p. 34. He testified that medical records indicated

that Sibling had last seen a physician in early May 2015 and had missed her six-

month well child checkup.

[7] Dr. Griggs stated that the cause of death appeared to be asphyxia, possibly

positional asphyxia (caused by a child’s position while sleeping or covered with

clothes, fluffy pillows, or bed clothes). The coroner further testified that

because Sibling “was under developed and malnourished possibly you know

would make her more likely to succumb to asphyxia . . . .” Id. at 49-50. In

other words, her weakened condition due to dehydration and malnutrition

increased her “risk generally” of succumbing to a “secondary medical

problem[]” such as asphyxia. Id. at 50.

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[8] On November 18, 2015, DCS filed a petition alleging Child to be a CHINS.

The trial court held a factfinding hearing on January 7 and February 15, 2016.

On March 14, 2016, the trial court denied Parents’ motion to return Child to

their care, ordering Child to remain in foster care. On May 17, 2016, the trial

court issued its order finding Child to be a CHINS, and on June 21, 2016, the

trial court issued a dispositional decree ordering Parents to participate in

reunification services and ordering Child to remain in foster care. Parents now

appeal.

Discussion and Decision
I. CHINS Finding
A. Standard of Review
[9] Parents first argue that there is insufficient evidence supporting the trial court’s

order finding Child to be a CHINS. 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.R., 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 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.

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 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).

[10] Here, DCS alleged that the child was 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.

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

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 needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,

1287 (Ind. 2014). In this case, Parents do not challenge the trial court’s factual

findings. Therefore, our only task is to determine whether the findings support

the CHINS adjudication. In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind.

2002).

B. Sufficiency
[11] In relevant part, the trial court found as follows:

4. [The DCS assessor] described [Sibling’s] body as follows:
(1) very small for her age, (2) underweight, (3) her head
disproportionately larger than her body, (4) sunken eyes,
(5) her skin already becoming a different color, (6) her
body starting to lose rigor, (7) a flat spot on the back of her
head with hair falling out, (8) her stomach bloated, (9) her
skin appeared loose, and (10) there appeared to be no body
fat.

***

7. Dr. Griggs noted physical observations indicate [Sibling]
was underdeveloped, poorly nourished, and dehydrated
with wasting muscle and a fatty, widened facial
appearance.

8. Dr. Griggs noted that evidence of dehydration and the
condition of the lower intestine indicates [Sibling] had
been fed within two (2) to three (3) days prior to death.

***

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 10. Dr. Griggs opined that [Sibling’s] condition could be the
result of growth retardation due to poor feeding or due to
poor care suggesting that a review of medical records
would provide necessary insight.

***

14. Dr. Griggs stated [Sibling’s] condition at the time of death
should have alerted a reasonably prudent caregiver that
something was wrong.

***

19. [Child] also tested positive for marijuana at birth.

20. [Child] is a noticeably thin child who is generally
physically healthy and normally socialized for her age.

***

22. . . . Mother reported [Sibling] died over the weekend either
late Saturday night or early Sunday morning. . . . Mother
provided no explanation for the failure to call 911 for
emergency medical assistance or the delay in transporting
[Sibling] to the hospital other than wanting to spend more
time with [Sibling] before she was taken away.

***

27. [Sibling], who was in the care of the parents, is now
deceased.

28. A criminal investigation is pending.

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 29. Neither parent sought immediate medical treatment for
[Sibling] after discovering that [Sibling] was not breathing.

30. Further, the parents failed to report [Sibling’s] death or
transport [Sibling] to the hospital for a period of at least
twenty-four (24) hours up to two and one-half (2 ½) days.

31. The manner of [Sibling’s] death remains unknown.

32. The Court is not required to wait until [Child] suffers a
similar harm before intervening.

Appellants’ App. Vol. II p. 76-78.

[12] Parents focus their argument on the fact that there is no evidence in the record

establishing that Child (as opposed to Sibling) had been neglected or abused by

Parents. Essentially, they contend that Sibling’s death was accidental, they

were not at fault, and Sibling’s death should not be the basis for Child’s CHINS

adjudication. The trial court found that, while the precise cause of Sibling’s

death is unknown, the evidence established that she was severely malnourished

and dehydrated and that her condition should have caused a reasonable

caregiver to know that something was wrong. Parents, however, did not seek

medical care for Sibling, missing a regular checkup for the premature and

underdeveloped infant and failing to call 911 when they noticed she was not

breathing. Nearly eight months after her birth, she weighed just eleven pounds.

And as Dr. Griggs testified, because Parents had failed to provide proper

nutrition and hydration to Sibling, she was more susceptible to asphyxiation

because of her severely weakened condition.
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[13] Parents direct our attention to two cases that are readily distinguishable from

the case before us. In In re T.H., this Court reversed a CHINS adjudication that

stemmed from the fact that the father had an unsecured firearm in the home.

856 N.E.2d 1247, 1249 (Ind. Ct. App. 2006). At the time of the CHINS

adjudication, the firearm issue had been rectified and was therefore an improper

basis for a CHINS adjudication. Id. at 1251. In R.S. v. Indiana Department of

Child Services, we reversed a CHINS adjudication that was based solely on a

mother’s prior care of her former children, to whom the juvenile court had

previously terminated the mother’s parental rights. 987 N.E.2d 155, 157 (Ind.

Ct. App. 2013). We found that the mother’s past actions in those regards were

not applicable to her subsequently born child because those conditions no

longer existed. Id. at 159.

[14] Here, in contrast, we cannot say that the issue of Sibling’s death had been

“rectified,” or no longer existed, at the time of the CHINS adjudication. The

death of a child cannot so easily be swept under the rug and left in the past.

Parents are facing an ongoing criminal investigation as a result of Sibling’s

death. Moreover, the trial court reasonably concluded that Parents’ neglect of

Sibling places Child at an ongoing risk of harm. Therefore, we are not

persuaded by the above, strikingly different, cases.

[15] Whether or not Sibling’s death was intentional, the trial court’s findings readily

support a conclusion that she was neglected by Parents and that their neglect at

least played a role in her death. Given this conclusion, it was eminently

reasonable for the trial court to conclude that Child is at serious risk of harm

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 and is in need of coercive state intervention to safeguard her health and well-

being. It is well established that a trial court considering a CHINS petition does

not have to wait until a tragedy occurs to intervene. E.g., In re A.H., 913 N.E.2d

303, 305 (Ind. Ct. App. 2009). Here, the trial court did not err by adjudicating

Child to be a CHINS to avoid another tragedy occurring in this family.

[16] Parents’ remaining arguments amount to requests that we reweigh evidence and

re-assess witness credibility, which we decline to do. We find the evidence

sufficient to support the order finding Child to be a CHINS.

II. Placement
[17] Finally, Parents argue that the trial court erred by denying their repeated

requests that Child be placed in their care and custody during the course of the

CHINS case. When the trial court enters a dispositional decree following a

CHINS adjudication, it has many available options, including an order

authorizing that the child be removed from her parents’ care and custody and

placed in another home. Ind. Code § 31-34-20-1(a)(3). In considering the

contents of the dispositional decree, the trial court must abide by the following

statute:

If consistent with the safety of the community and the best
interest of the child, the juvenile court shall enter a dispositional
decree that:

(1) is:

(A) in the least restrictive (most family like) and
most appropriate setting available; and

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 (B) close to the parents’ home, consistent with
the best interest and special needs of the
child;

(2) least interferes with family autonomy;

(3) is least disruptive of family life;

(4) imposes the least restraint on the freedom of the
child and the child’s parent, guardian, or custodian;
and

(5) provides a reasonable opportunity for participation
by the child’s parent, guardian, or custodian.

I.C. § 31-34-19-6. By virtue of its ability to determine placement of the child,

the trial court has exclusive jurisdiction over custody decisions until the parties

are either discharged or the cause is transferred. E.R. v. Marion Cnty. Office of

Family & Children, 729 N.E.2d 1052, 1060 (Ind. Ct. App. 2000). The trial court

must review the placement decision at least once every six months. I.C. § 31-

34-21-2. Placement decisions are continuing in nature, subject to change while

the CHINS proceedings are pending, and do not finally determine placement of

the child. E.R., 729 N.E.2d at 1059-60. The trial court’s formal determinations

regarding placement are reviewable by this Court.1 Id. at 1060.

[18] Here, as noted above, at the time of Sibling’s death, she was extremely

dehydrated and malnourished. Her condition was such that a normal caregiver

1
It may be the case that to perfect an appeal of a CHINS court’s placement decisions, a parent is required to
bring an interlocutory appeal. E.R., 729 N.E.2d at 1060. Notwithstanding the fact that the case at hand is
not a perfected interlocutory appeal, we will address the important issue of placement.

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 would have known something was wrong, but Parents not only missed a

regular well child checkup, they also failed to seek medical attention when they

realized she was not breathing. They then waited at least twenty-four hours

before taking her to the hospital.

[19] The trial court found, correctly, that it was “not required to wait until [Child]

suffers a similar harm before intervening.” Appellants’ App. Vol. II p. 78. Both

DCS and the Court Appointed Special Advocate supported Child’s continuing

placement outside of Parents’ care and custody because of the circumstances of

Sibling’s death and the ongoing criminal investigation. Indiana Code section

31-34-19-6 makes the best interest of the child the trial court’s paramount

consideration in determining placement. In this case, the trial court found that

Child’s best interests will be best served with out-of-home placement; but it also

ordered increased supervised visits occurring in Parents’ home and daily

monitoring, followed by a trial home visit and eventual placement back in the

home if all is going well. Given the evidence in the record, we cannot say that

the trial court erred by determining that it was in Child’s best interests to be

placed outside of Parents’ care and custody until the situation can be further

assessed and monitored.

[20] The judgment of the trial court is affirmed.

Mathias, J., and Pyle, J., concur.

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