MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Mar 14 2017, 8:58 am
court except for the purpose of establishing
                                                                       CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Special Assistant to the                                 Attorney General of Indiana
State Public Defender
                                                         Robert J. Henke
Wieneke Law Office, LLC                                  David E. Corey
Brooklyn, Indiana                                        Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: B.W. (Minor Child),                               March 14, 2017
Child in Need of Services,                               Court of Appeals Case No.
                                                         52A02-1610-JC-2323
                                                         Appeal from the Miami Circuit
J.W. (Father),                                           Court
Appellant-Respondent,                                    The Honorable Timothy P. Spahr,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         52C01-1606-JC-64
The Indiana Department of
Child Services,
Appellee-Petitioner




Baker, Judge.


Court of Appeals of Indiana | Memorandum Decision 52A02-1610-JC-2323 | March 14, 2017      Page 1 of 7
[1]   J.W. (Father) appeals the order declaring his son, B.W. (Child) to be a Child in

      Need of Services (CHINS). Father contends that the evidence is insufficient to

      support the CHINS adjudication. Finding the evidence sufficient, we affirm.


                                                     Facts
[2]   Child was born in July 2002. In April 2015, Child was the subject of a CHINS

      proceeding that was resolved with the establishment of a guardianship with his

      aunt and uncle (Guardians). A requirement of the guardianship was that Child

      was to live with Guardians. Father was permitted to exercise reasonable

      parenting time. To regain custody of Child, Father was required to complete

      certain services and requirements. He never did so, and the guardianship

      remained in effect at the time of the current CHINS factfinding hearing.


[3]   In June 2015, Child’s mother died. In July 2015, Child’s Guardians separated

      and Aunt moved to Missouri. Child stayed with Father and paternal relatives

      in Indiana for the summer and early fall and moved to Missouri in October

      2015 after the paternal relatives “had problems with” Child. Appellant’s Br. p.

      6. Child attended approximately one week of school in Missouri before getting

      expelled for fighting. After the expulsion, he remained in Missouri for nearly

      three months. He was not in school during that time.


[4]   In December 2015, Child returned to Indiana to live with Father and his

      girlfriend, but they did not enroll him in school. Between that time and June

      2016, Child bounced around between different caregivers, including: Father in

      Indiana; Father and his girlfriend in Indiana; Father, his girlfriend, and Aunt in

      Court of Appeals of Indiana | Memorandum Decision 52A02-1610-JC-2323 | March 14, 2017   Page 2 of 7
      Missouri; and Father’s girlfriend and her relatives. Child was not enrolled in

      school during this time. Father later testified that he attempted to enroll Child

      in school in Indiana but that the principal would not let Child enroll because of

      the previous expulsion. Father also stated that he began to research the

      possibility of Child enrolling in an online school, but he went to jail in March

      2016 on an unrelated criminal matter,1 which derailed the process.


[5]   On June 14, 2016, the Department of Child Services (DCS) received a report

      regarding Child. During its investigation, DCS learned that Child had been at

      the home of paternal relatives (with Father’s permission) when law enforcement

      learned that there was a methamphetamine lab in the home. Child was taken

      to the hospital, where he tested positive for methamphetamine and THC. Child

      admitted to the Family Case Manager (FCM) that he had used both drugs.


[6]   On June 15, 2016, DCS filed a petition alleging that Child was a CHINS, based

      both on the drug use and Child’s extended absence from school. DCS removed

      Child from Father’s care and custody and placed him at the Youth Opportunity

      Center (YOC), a residential treatment facility. On July 9, 2016, Child ran away

      from YOC, and he was still on the run at the time of the factfinding hearing.

      Child was with his half-brother and reached out to Father to ask for money; he

      called Father three or four times while on the run. Father did not cooperate




      1
          The record does not reveal the nature of the unrelated criminal matter.


      Court of Appeals of Indiana | Memorandum Decision 52A02-1610-JC-2323 | March 14, 2017   Page 3 of 7
      with DCS’s attempts to find Child, failing to inform DCS that Child had

      reported that he was with a family friend in North Carolina.


[7]   At some point between the filing of the CHINS petition and the factfinding

      hearing, Father asked the FCM to refer him for individual therapy. She did so,

      but Father did not follow through and has not participated in that service.


[8]   The trial court held a factfinding hearing on August 10, 2016, and on August

      28, 2016, the trial court entered its order finding Child to be a CHINS. A

      dispositional order was entered on September 22, 2016, ordering Father, Child,

      and Guardians to participate in services. Father now appeals.2


                                        Discussion and Decision
[9]   Father contends that there is insufficient evidence supporting the trial court’s

      CHINS finding. 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




      2
          Child’s Guardians are parties to the CHINS case, but are not participating in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 52A02-1610-JC-2323 | March 14, 2017            Page 4 of 7
               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).


[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.




       Court of Appeals of Indiana | Memorandum Decision 52A02-1610-JC-2323 | March 14, 2017   Page 5 of 7
[11]   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).


[12]   The undisputed evidence in this case reveals that between the time of Child’s

       expulsion in September 2015 and the filing of the CHINS petition in June 2016,

       he was not enrolled in school, be it a brick and mortar school, an online school,

       or a home schooling program. In other words, he attended only one week of

       school during the 2015-16 school year. Also during those months, Child was

       bounced between multiple residences and multiple caregivers in multiple states.

       And in June 2016, Child admitted to using methamphetamine and THC after

       testing positive for both substances.


[13]   These undisputed facts, alone, readily support the trial court’s conclusion that

       Child’s physical or mental condition was seriously endangered as a result of the

       inability, refusal, or neglect of Father and Guardians to supply Child with

       necessary education and supervision. Moreover, Child clearly needs care and

       treatment that he is not currently receiving. Finally, given that Father and

       Guardians had had approximately nine months to solve Child’s educational

       situation (or to ask for help) and had failed to do so, that Father had requested a

       referral for therapy but failed to engage with that service provider, and that

       Father had failed to cooperate with DCS after Child absconded from his

       placement at YOC, the evidence likewise establishes that the care and treatment

       Court of Appeals of Indiana | Memorandum Decision 52A02-1610-JC-2323 | March 14, 2017   Page 6 of 7
       that Child needs will not be provided or accepted without the coercive

       intervention of the court.


[14]   Father raises the following arguments in response to the CHINS finding:

       (1) Child was expelled because of his own choices, not because of Father’s

       neglect; (2) Father attempted to enroll Child in school in Indiana but the

       principal would not permit the enrollment because of the past expulsion, so

       Father began researching online schooling opportunities but was interrupted

       when he was arrested and incarcerated; (3) Aunt attempted to enroll Child in

       summer school but he refused to go; and (4) Father was not aware of Child’s

       drug use or of the presence of drugs in the home of the paternal relatives. The

       second and fourth arguments are mere requests that we reweigh evidence and

       reassess witness credibility—a request we decline. The first argument is an

       attempt to shift blame to Child, which is not only inappropriate but also

       evidences the underlying problem. Finally, the third argument—that Child

       refused to go to summer school and his Guardian was unable to make him go—

       supports the CHINS finding. This family needs help to manage and treat

       Child’s behavior, and the CHINS adjudication and services that go along with

       it will provide them the assistance they sorely need.


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


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




       Court of Appeals of Indiana | Memorandum Decision 52A02-1610-JC-2323 | March 14, 2017   Page 7 of 7
