MEMORANDUM DECISION
ON REHEARING

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Mar 09 2017, 7:27 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
Megan Shipley                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana                                    Robert J. Henke
                                                         James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        March 9, 2017

V.G. (Minor Child),                                      Court of Appeals Case No.
Child in Need of Services                                49A02-1605-JC-1071
                                                         Appeal from the Marion Superior
and                                                      Court
R.G. (Mother)                                            The Honorable Marilyn A.
Appellant-Respondent,                                    Moores, Judge
                                                         The Honorable Roseanne Ang,
        v.                                               Magistrate
                                                         Trial Court Cause No.
The Indiana Department of Child                          49D09-1511-JC-3428
Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1605-JC-1071 | March 9, 2017
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      Robb, Judge.


[1]   R.G. (“Mother”) petitions for rehearing of this court’s opinion in In re V.G., No.

      49A02-1605-JC-1071 (Ind. Ct. App. Dec. 28, 2016). In that opinion, we

      affirmed the juvenile court’s determination V.G. is a child in need of services

      (“CHINS”). Our decision relied upon Mother’s inability to provide V.G. with

      his basic needs, Mother’s own adjudication as a CHINS, Mother’s unstable and

      inconsistent housing situation, and the fact Mother left V.G. with L.C.

      (“Father”) and his paternal grandmother (“Paternal Grandmother”), neither of

      whom have established a guardianship, nor has Father established paternity.

      We grant rehearing to address Mother’s claim, but reaffirm our opinion in all

      respects.


[2]   On rehearing, Mother argues our opinion “relies on the fact that Father and

      Paternal Grandmother had not established legal guardianship or paternity[,]”

      despite the fact this court held in In re C.S., 863 N.E.2d 413, 419 (Ind. Ct. App.

      2007), abrogated in part by In re N.E., 919 N.E.2d 102 (Ind. 2010), that failure to

      establish paternity was not evidence of neglect. Petition for Rehearing at 7.

      Initially, we note our decision in this case did not rely upon Father’s and

      Paternal Grandmother’s lack of guardianship and/or paternity; rather, that was

      one of numerous factors considered in affirming the juvenile court’s

      adjudication of V.G. as a CHINS. Moreover, we disagree with Mother’s

      interpretation of In re C.S. and its application to this case.




      Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1605-JC-1071 | March 9, 2017
                                                                                                   Page 2 of 4
[3]   In In re C.S., C.S. was born to unwed parents, Loretta Savage and Christopher

      Montgomery. Montgomery was not present at C.S.’s birth, although he did

      visit the hospital several times. Savage did not name Montgomery as C.S.’s

      father on the birth certificate and Montgomery did not sign a paternity affidavit

      at the hospital. Following her birth, C.S. tested positive for benzodiazepines

      prompting the hospital to contact the Marion County Department of Child

      Services (“DCS”). Based on C.S.’s positive test and Savage’s admission to drug

      use during her pregnancy, DCS filed a petition alleging C.S. to be a CHINS.

      An initial hearing was held that same day at which Savage admitted the

      allegations of the petition and C.S. was placed in foster care. Montgomery did

      not appear at the hearing. Following a fact-finding hearing at which

      Montgomery did appear, the juvenile court adjudicated C.S. a CHINS.


[4]   On appeal, DCS attempted to justify the CHINS adjudication by relying on

      Montgomery’s failure to establish paternity. We noted Montgomery had

      previously indicated his desire to establish paternity and concluded his “failure

      to establish paternity before the fact-finding hearing was not evidence of neglect

      on his part that would seriously impair or endanger C.S.” Id. at 419 (internal

      quotation omitted).


[5]   In re C.S. and the present case are distinguishable. First, In re C.S. does not

      establish as a matter of law that a juvenile court can never consider a lack of

      paternity or guardianship in a CHINS adjudication, only that DCS could not

      rely solely on that fact to support C.S.’s CHINS adjudication. See id. Second, a

      failure to establish paternity could not be evidence of serious impairment or
      Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1605-JC-1071 | March 9, 2017
                                                                                                   Page 3 of 4
      endangerment as C.S. never lived with Montgomery and was placed in foster

      care since birth. Here, V.G. has lived with Father and Paternal Grandmother

      since shortly after his birth despite neither of them having a guardianship and

      Father never establishing paternity.1 In this case, Father’s failure to establish

      paternity does directly implicate V.G.’s well-being because it demonstrates a

      failure to assure V.G. can be provided with any medical care he needs.


[6]   For the reasons stated above, we reaffirm our decision in all respects.


      Kirsch, J., and Barnes, J., concur.




      1
       DCS’ original concerns cited in their petition were that Father and Paternal Grandmother lacked any form
      of legal custody and therefore could not meet V.G.’s medical needs.
      Court of Appeals of Indiana | Memorandum Decision on Rehearing 49A02-1605-JC-1071 | March 9, 2017
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