MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jul 30 2019, 8:36 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
Samantha M. Joslyn                                        Curtis T. Hill, Jr.
Law Office of Samantha Joslyn                             Attorney General of Indiana
Rensselaer, Indiana
                                                          Katherine A. Cornelius
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of J.M-C., I.M.,                            July 30, 2019
E.M., B.M., M.F., Ale.F.,                                 Court of Appeals Case No.
Ala.F., Alin.F., and Alia.F.,                             18A-JC-2838
Children in Need of Services,                             Appeal from the
T.M., Mother,                                             Jasper Circuit Court
                                                          The Honorable
Appellant-Respondent,
                                                          John D. Potter, Judge
        v.                                                Trial Court Cause Nos.
                                                          37C01-1806-JC-127
Indiana Department of Child                               37C01-1806-JC-128
                                                          37C01-1806-JC-129
Services,                                                 37C01-1806-JC-130
Appellee-Petitioner.                                      37C01-1806-JC-131
                                                          37C01-1806-JC-132
                                                          37C01-1806-JC-133
                                                          37C01-1806-JC-134
                                                          37C01-1806-JC-135


Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019                  Page 1 of 11
      Kirsch, Judge.


[1]   T.M. (“Mother”) appeals from the juvenile court’s order adjudicating her

      children to be children in need of services (“CHINS”). Mother raises the

      following restated issue for our review: whether the juvenile court erred in its

      CHINS determination because the CHINS adjudication was not supported by

      sufficient evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Mother has nine biological children (collectively, “the Children”). Tr. at 46.

      The father of the four oldest children, J.M-C., I.M., E.M., and B.M., is

      deceased. Id. P.F., Mother’s boyfriend (“Boyfriend”), is the father of the

      younger five children, M.F., Ale.F., Ala.F., Alin.F., and Alia.F. Id. At the

      time the petition was filed, Mother, Boyfriend, and the Children were in the

      process of moving from Demotte, Indiana to a house in Hammond, Indiana.

      Id. at 50. Boyfriend also has four other children with A.L. Id. at 45. A.L. and

      her four children lived in the same house with Boyfriend, Mother, and the

      Children. Id. at 50.


[4]   Indiana Department of Child Services (“DCS”) received a report on June 4,

      2018, about E.M., who was fourteen at the time, and her newborn child. Id. at

      45. Two days prior, E.M. had given birth to a child, and a DNA test was

      conducted that determined that Boyfriend was the father of E.M.’s child. Id. at

      32-33.
      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019   Page 2 of 11
[5]   On June 4, Demotte Police Department Officer Steve Musch (“Officer Musch”)

      went to the family’s Demotte home to serve an out of state warrant on

      Boyfriend. Id. at 28. Officer Musch had received information that Boyfriend

      was “armed and dangerous,” and he and the other officers arrived at the house

      in tactical gear. Id. Boyfriend went into the house with B.M., and the Sheriff’s

      tactical squad set up a perimeter to surround the house. Id. at 28-29. Mother

      arrived at the house with I.M. while the officers were there and attempted to go

      into the house, but Officer Musch physically restrained her from entering. Id. at

      31. Officer Musch asked Mother about the location of E.M., but Mother

      repeatedly told the officer, “don’t say anything to [Boyfriend] cause [sic] he’ll

      kill me.” Id. at 32. Boyfriend was eventually arrested, and Mother was

      transported to the police station. Id. at 38, 39.


[6]   At the police station, DCS family case manager Kris Donahue (“FCM

      Donahue”) spoke with Mother in order to locate the rest of the Children. Id. at

      47. B.M., I.M., and J.M-C. were at the police station, and E.M. was with her

      aunt in Chicago; the location of the rest was unknown. Id. Mother informed

      FCM Donahue that the rest of the Children were at a house where the family

      was moving to in Hammond, but she could not remember the address. Id. at

      48. The police wanted to arrest Mother for resisting law enforcement and

      disorderly conduct because of her behavior at the house, but FCM Donahue

      requested that she not be arrested so Mother could have custody of the

      Children. Id. FCM Donahue then worked with Mother to create a safety plan.

      Id. To comply with the safety plan, Mother was not to hinder the criminal

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019   Page 3 of 11
      investigation and would work with DCS. Id. Mother agreed to bring the

      Children to FCM Donahue the next morning for interviews. Id.


[7]   Mother did not bring the Children in for interviews the next morning. Id. at 49.

      Instead, A.L. transported the Children, and they arrived at the interviews three

      hours late. Id. On June 5, 2018, FCM Donahue decided to detain the Children

      because of Mother’s lack of compliance with the safety plan and the Children’s

      reports of sexual abuse, physical abuse, and neglect. Id. The Children reported

      to Donahue that Mother was aware of the abuse and neglect. Id.


[8]   On June 6, 2018, DCS filed petitions alleging the Children to be CHINS.

      Appellant’s App. Vol. 2 at 84-119. The petitions alleged that the Children suffered

      from neglect, physical abuse, and sexual abuse. Id. at 84-85. The petitions

      mentioned that Boyfriend had threatened to kill the children and Mother if they

      told others about the abuse. Id. at 117.


[9]   The petition specifically stated that the Children suffered from educational

      neglect. Id. at 116. The Children were not enrolled in school. Tr. at 51. FCM

      Donahue asked Mother to provide documents pertaining to the Children’s

      education, and Mother provided some attendance records on August 2, 2018.

      Id. at 52, 53. Mother told FCM Donahue that the Children had been attending

      school online through Khan Academy, which FCM Donahue discovered was

      not an accredited school. Id. at 51-52, 76. FCM Donahue evaluated the

      attendance records and discovered that the Children had missed many days of

      school and that the records only covered two years. Id. at 53. The Children


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019   Page 4 of 11
       told FCM Donahue that they could not remember the schools they attended,

       and FCM Donahue could not locate any school attendance records. Id. at 54.

       Only one school had a record of the oldest child, J.M-C., who was seventeen at

       the time of the proceedings, attending in fifth grade. Id. at 74.


[10]   At the fact-finding hearing on August 8, 2018, FCM Donahue testified about

       her experience working with the family. Id. at 46. She stated that Mother had

       told FCM Donahue that she was unaware that E.M. was pregnant because she

       and Boyfriend sent E.M. to live with Boyfriend’s sister in Chicago. Id. at 47.

       FCM Donahue stated that one of the other children, B.M., told her that E.M.

       had been sent away in an attempt to “abort the baby.” Id. at 46-47. FCM

       Donahue testified that Mother told her she would not “participate in any

       services until court ordered.” Id. at 55. FCM Donahue also stated that Mother

       failed to abide by the safety plan after Boyfriend’s arrest and refused to provide

       immunization records for the Children, which required DCS to have blood

       draws taken from the Children to determine if they had been vaccinated. Id. at

       55-56. Additionally, Mother was not consistent with information about where

       she was living. Id. at 55. Specifically, she provided DCS with an address in

       Sauk Village as her home address; however, that address was a vacant

       apartment. Id. Because Mother would not give a proper address, DCS was

       unable to view her apartment to see whether it was suitable and safe for the

       Children. Id. at 56.


[11]   At the conclusion of the hearing, the juvenile court found the Children to be

       CHINS. In its findings issued on August 17, 2018, the juvenile court found that

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019   Page 5 of 11
       the Children were CHINS due to E.M. being a victim of sexual violence by a

       family member, the Children’s inconsistency in attending school, the Children

       reporting incidents of abuse and domestic violence in the home, and Mother

       not having a consistent address. Appellant’s App. Vol. 2 at 120-22. Mother now

       appeals.


                                       Discussion and Decision
[12]   Mother argues that the juvenile court’s CHINS determination was clearly

       erroneous and not supported by the evidence. To determine if there is sufficient

       evidence to support a CHINS determination, this court will not reweigh the

       evidence or determine the credibility of witnesses. In re A.R., 110 N.E.3d 387,

       400 (Ind. Ct. App. 2018). “We consider only the evidence that supports the

       juvenile court’s decision and reasonable inferences drawn therefrom.” Id.

       Where a juvenile court’s order contains specific findings of fact and conclusions

       thereon, we apply a two-tiered review. Id. We first decide if the evidence

       supports the findings and then determine if the findings support the judgment.

       Id. A determination that a child is a CHINS will only be reversed if the

       determination was clearly erroneous. Id. “A decision is clearly erroneous if the

       record facts do not support the findings or if it applies the wrong legal standard

       to properly found facts.” Id.


[13]   A CHINS proceeding is a civil matter, and DCS bears the burden of proving the

       child is a CHINS by a preponderance of the evidence. Id. Under Indiana Code

       section 31-34-1-1, a child is a CHINS if, prior to the age of eighteen:


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019   Page 6 of 11
               (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 the 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.


[14]   A child is adjudicated a CHINS under Indiana Code section 31-34-1-3(a) if the

       child is under eighteen and is a victim of an offense under section 35-42-4-3,

       child molesting, or section 35-42-4-1, rape. Indiana Code section 31-34-1-3

       further provides under subsection (b) that a child is a CHINS if the child is

       under eighteen and:


               (1) lives in the same household as an adult who:


               (A) committed an offense described in subsection (a)(1) against a
                  child and is awaiting trial.


       Lastly, a child is a CHINS if the child is under eighteen and “lives in the same

       household as another child who is the victim of an offense described in

       subsection (a)(1).” Ind. Code § 31-34-1-3(c)(1). Here, the juvenile court found

       that the Children were CHINS as defined by both Indiana Code section 31-34-

       1-1 and Indiana Code section 31-34-1-3.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019   Page 7 of 11
[15]   Mother argues that the juvenile court erred in finding educational neglect

       because the Children were attending the Kahn Academy online. She further

       argues that there is no state law that requires the Children to attend an

       accredited school. The evidence presented to the juvenile court showed that the

       Children did not regularly attend school and had significant absences. Tr. at

       51, 53. Although Mother provided DCS with attendance records beginning in

       September 2016 and ending in June 2018, no records prior to September 2016

       were ever received by DCS. Id. at 53, 54-55. Additionally, while Mother

       indicated to DCS that the Children were attending Khan Academy, it is not an

       accredited school and not an equivalent to a school curriculum as required by

       the Department of Education.1 Therefore, the evidence demonstrated that the

       Children did not consistently attend any educational institution. The evidence

       presented supported the juvenile court’s finding that Mother did not meet the

       educational needs of the Children as required by Indiana Code section 31-34-1-

       1.


[16]   Mother next contends that the CHINS determination was improper because

       there was no evidence that the Children were in physical harm at the time of

       removal from the home as the Children did not have any “bruises or signs of

       neglect” at that time. We disagree. At the time of removal, the Children




       1
        Kahn Academy is meant to “fill in gaps in [a student’s] education, not to substitute an education
       curriculum. See https://www.khanacademy.org/resources/out-of-school-time-programs/khan-academy-in-
       out-of-school-programs/a/what-do-we-offer-for-out-of-school-programs (last visited July 17, 2019). The
       program does not meet the standards as stated by the Indiana Department of Education. See
       https://www.doe.in.gov/standards (last visited July 17, 2019).

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019              Page 8 of 11
       reported to FCM Donahue that abuse and domestic violence had been

       occurring in the home and that Mother was aware of the abuse. Tr. at 49.

       Because Mother knew of the abuse and never intervened, this evidence

       supported the juvenile court’s findings that the Children’s physical or mental

       conditions were seriously impaired or seriously endangered as a result of the

       Mother’s inability, refusal, or neglect to supply the Children with the necessary

       supervision under Indiana Code section 31-34-1-1.


[17]   Mother further asserts that there was no evidence that she was responsible for

       the sexual abuse of the Children. “A CHINS proceeding focuses on the best

       interests of the children, not the ‘guilt or innocence’ of either parent.” In re

       D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017) (citing In re N.E., 919 N.E.2d

       102, 106 (Ind. 2010)). “[W]hile the acts or omissions of one parent can cause a

       condition that creates the need for court intervention, the purpose of a CHINS

       adjudication is to protect children, not to punish parents.” M.K. v. Ind. Dep’t of

       Child Servs., 964 N.E.2d 240, 244 (Ind. Ct. App. 2012). Evidence was presented

       at the fact-finding hearing that Boyfriend raped E.M. several times a month for

       almost two years, beginning when E.M. was only twelve years old. DNA

       testing established that Boyfriend was father of E.M.’s child. Ex. Vol. 3 at 7-9,

       21. At the time that E.M. was impregnated, she was thirteen years old, and she

       gave birth on June 2, 2018, to a full-term infant. Id. at 21. E.M. and all her

       siblings and half-siblings lived together with Mother, A.L., and Boyfriend, in

       the home in DeMotte for about a year before E.M.’s baby was born. Tr. at 50.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019   Page 9 of 11
       The State charged Boyfriend with rape, a Level 3 felony, and child molesting, a

       Level 1 felony. Ex. Vol. 3 at 13, 19.


[18]   The juvenile court found that Boyfriend was charged with rape under Indiana

       Code section 35-42-4-1 and child molesting under Indiana Code section 35-42-

       4-3; the alleged victim was E.M. Appellant’s App. Vol. 2 at 121. The juvenile

       court further found, “There is ample evidence for the court to find that

       [Boyfriend] likely committed sexual molestation, sexual battery, and/or sexual

       misconduct with a minor child as defined by Indiana law.” Id. Mother denies

       knowing that E.M. was even pregnant, but E.M. did not move to Chicago until

       February or March 2018, when she was at least six months pregnant. Tr. at 49;

       Ex. Vol. 3 at 27-48. Mother’s claim that she was not aware that her daughter

       was pregnant is not reasonable based on this evidence.


[19]   Under Indiana Code section 31-34-1-3(a), a child is adjudicated a CHINS if the

       child is under eighteen and is a victim of child molesting or rape; under

       subsection (b), a child is a CHINS if the child is under eighteen and lives in the

       same household as an adult who committed child molesting or rape against a

       child and is awaiting trial; and, under subsection (c), a child is a CHINS if the

       child is under eighteen and lives in the same household as another child who is

       the victim of child molesting or rape. Here, the evidence showed that Boyfriend

       had been charged with rape and child molesting and the alleged victim was

       E.M. At the time that these crimes were alleged to have occurred, all of the

       Children lived in the same household with Mother and Boyfriend. This



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019   Page 10 of 11
       evidence was sufficient to support the juvenile court’s finding that the Children

       were CHINS under Indiana Code section 31-34-1-3.


[20]   Finally, Mother argues that there was no evidence that the coercive intervention

       of the juvenile court is needed to protect the Children. The State rebuts this

       argument stating that Mother refused to participate in services without a court

       order. Appellee’s Br. at 22. We agree. To determine if coercive intervention is

       necessary, the juvenile court must determine if the parents must be coerced into

       providing or accepting necessary treatment for their child. In re E.K., 83 N.E.3d

       1256, 1262 (Ind. Ct. App. 2017), trans. denied. Here, Mother told FCM

       Donahue that she would not cooperate with service providers unless she was

       required by court order. Tr. at 55. It is, therefore, clear that the only way the

       Children would receive the necessary care and treatment needed would be

       through court intervention. There was sufficient evidence that the coercive

       intervention of the juvenile court was necessary to protect the Children.


[21]   Based on the evidence presented at the fact-finding hearing, we conclude that

       the findings of the juvenile court were not clearly erroneous, and the juvenile

       court’s findings support its judgment that the Children were CHINS. The

       evidence of abuse, both physical and sexual, and of neglect was not only

       sufficient, it was overwhelming. We, therefore, affirm the juvenile court’s

       judgment.


[22]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2838 | July 30, 2019   Page 11 of 11
