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




Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017    Page 1 of 12
      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


      Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 2 of 12
      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.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 3 of 12
[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.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 4 of 12
               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

       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 5 of 12
       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.


                                                        ***



       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 6 of 12
        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.

Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 7 of 12
               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.
       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 8 of 12
[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

       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 9 of 12
       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

       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 10 of 12
                                  (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.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017        Page 11 of 12
       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.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-JC-1558 | February 17, 2017   Page 12 of 12
