MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Aug 25 2015, 9:53 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANTS PRO SE                                        ATTORNEYS FOR APPELLEE
L.E. and E.E.                                            Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        August 25, 2015
L.E. III, B.E. & A.E. (Minor                             Court of Appeals Case No.
                                                         49A05-1412-JC-548
Children), Children in Need of
Services                                                 Appeal from the Marion Superior
                                                         Court
and
                                                         The Honorable Marilyn Moores,
E.E. (Mother) & L.E. (Father),                           Judge
                                                         The Honorable Danielle Gaughan,
Appellants-Respondents,
                                                         Magistrate
        v.                                               Trial Court Cause Nos.
                                                         49D09-1404-JC-729
                                                         49D09-1404-JC-730
The Indiana Department of
                                                         49D09-1404-JC-731
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015   Page 1 of 8
      Baker, Judge.


[1]   E.E. (Mother) and L.E. (Father) appeal the judgment of the juvenile court

      finding their children to be children in need of services (CHINS). Finding that

      the juvenile court’s judgment is supported by sufficient evidence and that

      Mother and Father have failed to make a cogent argument on appeal, we

      affirm.


                                                     Facts
[2]   Mother and Father have three children, L.E. III, B.E., and A.E. (the children).

      The children are currently four, three, and two years of age, respectively. On

      April 4, 2014, the Department of Child Services (DCS) received a report of

      possible domestic violence in the home and that the home was unsafe for the

      children. DCS sent Anna Pfau, a family case manager (FCM), to assess the

      situation.


[3]   When Pfau arrived at the home, Mother refused to allow her to enter. Mother

      asked Pfau if she could give her a moment to clean up. Pfau waited for a few

      minutes until Mother returned to inform Pfau that she would have to come

      back another time. While Mother had the door open, Pfau could observe safety

      hazards inside the home. After Mother again refused to allow Pfau inside, Pfau

      contacted the Indianapolis Metropolitan Police Department (IMPD) and

      requested that officers come to the home to conduct a child welfare check.


[4]   When the officers arrived, they observed Mother and Father putting the

      children in the car and preparing to leave. After speaking with Mother and
      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015   Page 2 of 8
      Father, the officers were able to convince them to allow Pfau to conduct her

      assessment. Upon entering the home, Pfau observed debris, including trash

      covering much of the floor, rotten food in the refrigerator leaking onto the

      kitchen floor, pesticides within reach of the children, and other safety hazards

      for the children, such as falling and choking hazards.


[5]   When Pfau was preparing paperwork, Father told the officers that he believed

      they were violating his constitutional rights. One of the officers told Father to

      sit down, but he refused, and instead “moved as if to strike the officer.” Tr. p.

      194. At this point, the officers tried to physically subdue Father, who was

      attempting to fight them off. Father was arrested at the end of the ordeal.


[6]   On April 8, 2014, DCS removed the children from the care of their parents and

      filed a petition alleging them to be CHINS. On September 29, 2014, the

      juvenile court held a factfinding hearing. At that hearing, the juvenile court

      heard evidence regarding Mother’s significant history of mental health

      hospitalizations and treatment. The evidence indicated that Mother suffers

      from delusions and hallucinations and has been diagnosed with schizoaffective

      disorder. A doctor who had examined Mother testified that Mother believed

      she could hear the thoughts of other people and interpret those thoughts. Pfau

      testified that after the children were removed from the home, she received many

      calls and text messages from Mother in which she seemed extremely paranoid,

      accusing Pfau of not working for DCS and “having friends in Washington.”

      Tr. p. 197. The results of a psychological evaluation conducted after the

      children’s removal indicated that Mother was “extremely disorganized and

      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015   Page 3 of 8
      difficult to follow” and that her “thought process evidence[d] paranoia.” DCS

      Ex. 1. The juvenile court also heard testimony indicating that Mother had been

      prescribed anti-psychotic medication that she had not been taking.


[7]   As for Mother and Father’s participation in the services that had been provided

      since the children’s removal, a home-based service provider testified that she

      did not recommend that the children be returned to the home at the time of the

      hearing. The service provider testified that Mother was the primary caregiver

      and that Father was not assisting Mother in caring for the children. The service

      provider feared that if the children were to be returned at that time, the situation

      would simply revert back to the way it was prior to DCS’s involvement.


[8]   Following the hearing, the juvenile court found the children to be CHINS. On

      October 28, 2014, the juvenile court held a dispositional hearing and ordered

      Mother and Father to participate in reunification services. Mother and Father

      now appeal.1


                                     Discussion and Decision
[9]   Our review of a juvenile court’s determination in a CHINS proceeding is

      governed by Indiana Trial Rule 52. In re T.S., 906 N.E.2d 801, 804 (Ind. 2009).




      1
        Several references in Mother and Father’s brief lead us to believe that they may actually wish to appeal
      DCS’s substantiation of neglect rather than the juvenile court’s CHINS finding. However, even if we wished
      to consider the merits of the substantiation, there is nothing in the record indicating that Mother and Father
      have exhausted their remedies at the agency level. Mother and Father have the right to contest the
      substantiation, however, they must do so within thirty days of being notified of it. 465 Ind. Admin. Code § 3-
      2-1; Ind. Code § 31-33-26-8.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015             Page 4 of 8
       That rule provides that “the court on appeal shall not set aside the findings or

       judgment unless clearly erroneous and due regard shall be given to the

       opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial

       Rule 52(A). We first consider whether the evidence supports the findings, and

       then we consider whether the findings support the judgment. In re T.S., 906

       N.E.2d at 804. We view all of the evidence and the reasonable inferences to be

       drawn from it in the light most favorable to the judgment. Id.


[10]   Because a CHINS proceeding is a civil action, DCS was required to prove by a

       preponderance of the evidence that the children were CHINS as defined in the

       juvenile code. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). Here, DCS alleged

       that the children were CHINS pursuant to Indiana Code section 31-34-1-1,

       which 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.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015   Page 5 of 8
[11]   Mother and Father begin their argument by claiming that FCM Pfau’s initial

       assessment of their home violated their right against unreasonable searches and

       seizures protected by the Fourth and Fourteenth Amendments to the U.S.

       Constitution. Mother and Father claim that the search was motivated by racial

       prejudice against Father, who is Black. However, Mother and Father make no

       attempt to develop an argument in support of these allegations, and we decline

       to develop an argument on their behalf.2


[12]   Furthermore, Mother and Father have waived these issues by failing to raise

       them before the juvenile court. Issues not raised before the trial court are

       waived on appeal. In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007). Our

       Supreme Court has explained that, “[a]t a minimum, a party must show that it

       gave the trial court a bona fide opportunity to pass upon the merits of the claim

       before seeking an opinion on appeal.” Endres v. Ind. State Police, 809 N.E.2d

       320, 322 (Ind. 2004). Therefore, even had these constitutional arguments been

       developed in Mother and Father’s appellate brief, we would decline to consider

       such arguments for the first time on appeal.




       2
         While we acknowledge that Mother and Father bring this appeal pro se, “pro se litigants are held to the
       same standard as are licensed lawyers.” Akiwumi v. Akiwumi, 23 N.E.3d 734, 740 (Ind. Ct. App. 2014).
       Indiana Appellate Rule 46 provides that the argument section of a party’s brief “must contain the contentions
       of the appellant on the issue presented, supported by cogent reasoning. Each contention must be supported
       by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”
       Mother and Father fail to meet this standard. However, we will attempt to deal with Mother and Father’s
       arguments on the merits to the extent that we can understand them.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015               Page 6 of 8
[13]   Mother and Father devote the remainder of their brief to pointing out instances

       where they disagree with the trial court’s factual findings. Mother and Father

       do not argue that the evidence was insufficient to support the trial court’s

       findings on any of these points. Rather, they simply allege that the trial court’s

       findings are incorrect. After recounting the facts, Mother and Father devote

       their entire argument to (1) questioning Pfau’s credibility and the veracity of her

       testimony; (2) focusing on testimony that portrayed Mother’s mental state in a

       positive light; and (3) claiming that the home-based service provider lied to

       them about the CHINS process.3 Appellant’s Br. p. 3-8.


[14]   The juvenile court had evidence before it that the children were living in

       extremely dirty conditions and surrounded by numerous safety hazards. The

       evidence also indicated that Father let the entire burden of caring for the

       children fall on Mother, who suffered from mental illnesses for which she was

       not taking her prescribed medication. We cannot say that the juvenile court’s

       conclusion that the children were CHINS was clearly erroneous given this

       evidence. To the extent that Mother and Father’s arguments even relate to

       evidence presented at trial,4 they amount to a request to reweigh the evidence

       and judge witness credibility, which we may not do.




       3
         Mother and Father’s reply brief proceeds in the same fashion, beginning with their assertion that: “The
       witnesses[’] credibility should be further questioned, it is only their perspective and they have admitted faults
       in their own credibility.” Reply Br. p. 2.
       4
         Even if we wished to reweigh the evidence, because Mother and Father have provided no citation to the
       record, we cannot determine whether their version of events finds any support in the evidence.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015                 Page 7 of 8
[15]   The judgment of the juvenile court is affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-JC-548 | August 25, 2015   Page 8 of 8
