MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Mar 30 2020, 9:22 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:
Steven J. Halbert                                        INDIANA DEPARTMENT OF
Indianapolis, Indiana                                    CHILD SERVICES
                                                         Curtis T. Hill, Jr.
                                                         Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana
                                                         ATTORNEY FOR APPELLEE:
                                                         CHILD ADVOCATES, INC.
                                                         DeDe Connor
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of M.K., (Minor                            March 30, 2020
Child), Child in Need of                                 Court of Appeals Case No.
Services,                                                19A-JC-2355
and                                                      Appeal from the Marion Superior
                                                         Court
V.K. (Father),                                           The Honorable Diana Burleson,
Appellant-Respondent,                                    Magistrate




Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020                      Page 1 of 9
              v.                                               Trial Court Cause No.
                                                               49D15-1905-JC-1260
      The Indiana Department of
      Child Services,
      Appellee-Petitioner,

      and

      Child Advocates, Inc.,
      Guardian ad Litem.



      Tavitas, Judge.


                                               Case Summary

[1]   V.K. (“Father”) appeals the trial court’s order adjudicating his minor child,

      M.K. (the “Child”), as a child in need of services (“CHINS”). We affirm.


                                                      Issue

[2]   Father raises one issue on appeal, which we restate as whether the evidence was

      sufficient to support the trial court’s conclusion that the Child is a CHINS.


                                                      Facts

[3]   The Child was born in 2002 to V.J. (“Mother”), who died in 2018, and Father.

      The Child lived at Father’s home with Father’s wife (“Stepmother”), the

      Child’s sister, and three step-siblings.


[4]   On May 2, 2019, the Department of Child Services (“DCS”) received a report

      the Child did not return home from school, and Father told DCS that the Child

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020   Page 2 of 9
      was no longer welcome at his home. The same day, Father agreed to a safety

      plan for the Child, and the Child was sent to a Stop Over home 1 from May 3,

      2019, to May 13, 2019. 2 On May 13, 2019, Father reluctantly allowed the

      Child to return home because the Child had nowhere else to go; however, the

      Child said she would commit suicide if she had to return to Father’s home.


[5]   On May 13, 2019, DCS removed the Child from Father’s home because

      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 [C]hild with necessary food, clothing,

      shelter, medical care, education or supervision.” Appellant’s App. Vol. II p. 24.

      Shortly thereafter, Deja Thomas, an assessment family case manager (“FCM”)

      with DCS, conducted an assessment with the Child and Father. Father stated

      to FCM Thomas that: (1) he did not want the Child to return home until she

      received services outside of the home and he denied he needed services; and (2)

      Father reported the Child was acting out sexually and she did not want to

      follow the rules at home.


[6]   On May 15, 2019, DCS filed a petition alleging the Child was a CHINS

      pursuant to Indiana Code Section 31-34-1-1. Specifically, DCS alleged: (1)

      Father has failed to provide the child with a safe and stable home; (2) the Child




      1
       Stop Over is not defined in the record; however, the Child described Stop Over as a “shelter” for “teens and
      young adults.” Tr. Vol. II p. 20.
      2
          It appears that Father also attempted to get the Child in a Stop Over home previously.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020                    Page 3 of 9
      has a history of running away and has not been provided adequate supervision

      by Father; (3) the Child has threatened to commit suicide if she is to return

      home to Father; (4) Father was unwilling to meet the Child’s needs as Father

      was not allowing the Child to return home; and (5) Father has not created an

      appropriate, alternative plan for the Child’s care.


[7]   Tracy Johnson, an outpatient therapist at Park Center, conducted an

      assessment on the Child on July 22, 2019. Johnson diagnosed the Child with

      post-traumatic stress disorder, moderate cannabis abuse disorder, and

      unspecified depression. At the time of the July 22 assessment, the Child was

      already seeing a therapist, Katherine Devinney. 3


[8]   The trial court held a CHINS fact finding hearing on September 10, 2019. At

      the time of the fact finding hearing, the Child was in foster care. Witnesses

      testified to the foregoing events. FCM Thomas testified about her concerns for

      the Child, and specifically, that Child did not feel safe in the home and the

      Child reported physical abuse in the home. Devinney testified that, based on

      disclosures the Child made to Devinney during therapy, she had concerns

      regarding returning the Child to Father. The only services Devinney

      recommended for the Child was continued therapy with Devinney.




      3
        Katherine Devinney, a therapist at Lifeline Youth and Family Services in Fort Wayne, has been the Child’s
      therapist since early July 2019 pursuant to a DCS referral.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020                  Page 4 of 9
[9]    The Child testified at the fact finding hearing as follows: (1) her relationship

       with Father is “non[]existent” and the Child does not want anything to do with

       Father, tr. vol. II p. 23; (2) the Child does not get along with her other family

       members; (3) the Child has tried to harm herself as a result of those poor

       relationships; (4) the Child and Father previously smoked marijuana daily; (5)

       the Child does not feel safe returning home; and (6) the Child was willing to

       continue working with her therapist and other service providers.


[10]   Elizabeth Davids, a permanency FCM with DCS, testified as follows: (1)

       Father stated that he has done all he can do to help the Child; (2) Father

       believes the Child is the issue; (3) Father is concerned with the way the Child

       “uses her body,” and the fact that the Child’s former boyfriend vandalized

       Father’s vehicle, tr. vol. II p. 36; (4) Father does not believe that he needs any

       services and believes there are no issues with regard to his parenting of the

       Child; and (5) Father does not want the Child to return home until she receives

       help with her issues. Father was not able to give FCM Davids specific

       information about what Father has done in the past to assist the Child.


[11]   FCM Davids did not recommend the Child be placed with Father because the

       Child is a runaway risk; the Child’s underlying needs would not be addressed;

       and Father does not have the willingness to learn about the Child’s needs.

       FCM Davids did not believe Father would even allow the Child back into the

       home. FCM Davids recommended several services “to help build and repair

       the relationship between the family and dad and daughter,” including a parent

       family functional assessment and family therapy. Id. at 38.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020   Page 5 of 9
[12]   At the close of the fact finding hearing, the trial court adjudicated the Child a

       CHINS. The trial court proceeded immediately to disposition. The trial court

       ordered Father to participate in the parental participation order, which the trial

       court incorporated into its dispositional decree. See Appellant’s App. Vol. II p.

       17. The parental participation order ordered Father to participate in a parenting

       family functioning assessment, follow the recommendations from that

       assessment, and participate in family therapy after a positive recommendation

       from the Child’s therapist. Father now appeals.


                                                    Analysis

[13]   Father argues the evidence is insufficient to conclude that the Child is a

       CHINS. CHINS proceedings are civil actions; thus, “the State must prove by a

       preponderance of the evidence that a child is a CHINS as defined by the

       juvenile code.” N.L. v. Ind. Dep’t of Child Servs (In re N.E.), 919 N.E.2d 102, 106

       (Ind. 2010). On review, we neither reweigh the evidence nor judge the

       credibility of the witnesses. Id. Here, the trial court entered findings of fact and

       conclusions thereon in granting DCS’s CHINS petitions. When reviewing

       findings of fact and conclusions thereon, we apply a two-tiered standard of

       review. First, we determine whether the evidence supports the findings, and

       second, we determine whether the findings support the judgment. In re I.A., 934

       N.E.2d 1127, 1132 (Ind. 2010). We will set aside the trial court’s judgment

       only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020   Page 6 of 9
[14]   Indiana Code Section 31-34-1-1 provides that:


               . . . [A] child is a child in need of services if, before the child
               becomes eighteen 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.


[15]   “[T]he purpose of a CHINS adjudication is to protect children, not [to] punish

       parents.” In re N.E., 919 N.E.2d at 106. A CHINS adjudication is not a

       determination of parental fault but rather is a determination that a child is in

       need of services and is unlikely to receive those services without intervention of

       the court. Id. at 105. “A CHINS adjudication focuses on the condition of the

       child . . . . [T]he acts or omissions of one parent can cause a condition that

       creates the need for court intervention.” Id. (citations omitted).


[16]   Father argues that DCS failed to prove that the Child is a CHINS because: (1)

       the only services the Child needs are therapy that the Child is already receiving

       and wanted to continue; (2) coercive intervention of the trial court was not
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020     Page 7 of 9
       necessary to get the Child the assistance she needed; and (3) Father did not

       need any specific services. We disagree.


[17]   While the Child has accepted that she will continue her therapy and other

       services, Father said multiple times that he did not need services and that there

       are no issues with his parenting. Father told DCS the problem is with the

       Child, and not with Father. Father has failed to secure an alternative to the

       trial court’s intervention. The Child is without a home and the State is required

       to intervene. Assisting the Child is not a one-way street, and the fact the Child

       is willing to engage in services does not mean coercive intervention is not

       necessary. Father does not understand the Child cannot do this alone and is

       not willing to help the Child. The trial court ordered Father to participate in a

       parenting assessment, follow the recommendations from the assessment, and

       participate in family therapy when the Child’s therapist determined the Child

       was ready. 4


[18]   Father cites In re V.H., 967 N.E.2d 1066 (Ind. Ct. App. 2012), as a “similar

       situation” where the mother refused to pick up her child from Lutherwood

       because she wanted the Child to receive additional services. Appellant’s App.

       Vol. II p. 12. The Mother in J.H., however, was taking action even after DCS

       became involved, such as contacting her physician and scheduling a




       4
         The trial court’s conclusion does not support Father’s contention that the court “did not find the Father
       needed any particular services.” Appellant’s Br. p. 6. At the very least, Father’s participation in therapy with
       the Child when she was ready constituted a service by Court intervention.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020                      Page 8 of 9
       psychological evaluation for her child after learning it would take a significant

       amount of time for DCS to obtain one. In this case, FCM Davids testified

       Father could not share what has been done to assist the Child other than not

       allowing the Child to return to the home.


[19]   Father has been clear that he will not participate in services to help the Child

       absent court intervention. See cf. In re D.J., 68 N.E.3d 574, 581 (Ind. 2017)

       (finding coercive intervention of the court was not needed when parents

       completed the parenting curriculum, parents were engaged in services, and

       “serious” about doing what DCS asked parents to do). The trial court’s

       conclusion is not clearly erroneous.


                                                  Conclusion

[20]   The evidence was sufficient to adjudicate the Child a CHINS. We affirm.


[21]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2355 | March 30, 2020   Page 9 of 9
