 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any                 May 28 2013, 9:29 am
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

AMY KAROZOS                                     PATRICK M. RHODES
Greenwood, Indiana                              DCS Marion County Local Office
                                                Indianapolis, Indiana

                                                ROBERT J. HENKE
                                                DCS Central Administration
                                                Indianapolis, Indiana


                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN RE THE MATTER OF:                            )
D.H. and D.H.,                                  )
CHILDREN IN NEED OF SERVICES,                   )
                                                )
D.H. (Father),                                  )
                                                )
       Appellant-Respondent,                    )
                                                )
                 vs.                            )    No. 49A02-1210-JC-827
                                                )
MARION COUNTY DEPARTMENT OF                     )
CHILD SERVICES,                                 )
                                                )
AND                                             )
                                                )
CHILD ADVOCATES, INC.,                          )
                                                )
       Appellee-Guardian Ad Litem.              )
                                                )


        APPEAL FROM THE MARION SUPERIOR COURT – JUVENILE DIVISION
                       The Honorable Marilyn A. Moores, Judge
                     The Honorable Danielle Gaughan, Magistrate
              Causes Nos. 49D09-1206-JC-22703 & 49D09-1206-JC-22704
                                              May 28, 2013

                   MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

                                             Case Summary

       Father appeals the trial court’s determination that his sons, D.L.H. and D.H., are

children in need of services (“CHINS”). Father argues there is insufficient evidence to

support the trial court’s CHINS determination.                 Because we conclude that there is

sufficient evidence to support the adjudication, we affirm.

                                   Facts and Procedural History

       Father has two sons, D.L.H., born August 30, 2004, and D.H., born February 2,

2007.1 Both children have asthma. DCS first became involved with the family in 2008

because the children were not getting medical care for their asthma. In an effort to ensure

that they would get regular medical care, the children were enrolled in Riley Hospital for

Children’s high-risk asthma clinic. In May 2012, DCS received a report that the parents

were not bringing the children to their clinic appointments. A DCS family case manager,

Eric Woods, met with the parents to discuss the children’s medical care.

       Mother told FCM Woods that the children had not been to the clinic because she

had transportation problems.2 Mother admitted, however, that she knew she could get

free transportation to the clinic through the Medicaid cab program, but she did not take

advantage of the program. Mother also indicated that she was having substance-abuse

       1
           We refer to the children as D.L.H. and D.H. due to their similarly spelled names.
       2
           We discuss Mother only as necessary to explain this case’s progression; Mother does not
participate in this appeal.
                                                     2
problems, she and Father had recently separated, and Father was the family’s only source

of income. FCM Woods also spoke to Father, who indicated that he had recently been

hospitalized in Georgia and during that time, he could not take the children to their clinic

appointments.

       In June 2012, due to the parents’ ongoing failure to provide medical care for

D.L.H. and D.H., DCS filed a CHINS petition for both children. At an initial hearing, the

parents denied the allegations in the CHINS petition. The trial court allowed the children

to remain in their parents’ care, but it ordered Mother and Father to ensure the children

attended all their clinic appointments and also to participate in home-based therapy, case-

management services, and random drug screens. An evidentiary hearing on the CHINS

petition was scheduled for September 4, 2012. Although neither parent attended the

hearing, both were represented by counsel.

       At the hearing, DCS established the parents’ failure to ensure that the children

received medical care as well as Father’s refusal to participate in services. A social

worker from Riley Hospital, Erin McKalips, testified that as clinic participants, D.L.H.

and D.H. were supposed to be seen by a clinic doctor every six to eight weeks and

required daily medication. Tr. p. 21. The children had been accepted into the clinic

because they qualified as high-risk patients due to their “chaotic living environment.” Id.

at 24. Chaotic, in this case, meant:

       In the matter of a year, [F]ather presented to the clinic, missing medications
       because of two house fires, or kitchen fires. A third time because someone
       came into the home and stole the [children’s] medications. And he also
       reported they’ve had to move a couple times because of mold in the home
       and at one point, there was a report filed for domestic violence at bedside,


                                             3
       while a patient at Methodist Hospital. So there [are] just concerns that
       multiple cris[e]s, events happened in . . . their lives.

Id. McKalips also expressed concern about her most recent interaction with Father,

during which he was “falling asleep in the exam room during conversation” and slurring

his words. Id. McKalips went on to summarize the parents’ compliance with clinic

requirements in the past two years, saying that both children missed a number of

scheduled appointments. D.H., specifically, had nineteen clinic appointments scheduled,

but his parents brought him to only seven. Id. at 34. Before his most recent appointment,

D.H. had been absent from the clinic for ten months. Id. at 34-35. McKalips also said

that the parents failed to fill the children’s prescriptions in July, noting that the parents

told her they filled prescriptions at CVS and that she had called CVS to confirm that the

prescriptions were not filled. Id. at 39-40. She said the parents had filled the children’s

prescriptions for the month of August, however.

       DCS FCM Elizabeth Plew, who made therapy and drug-screen referrals for the

family after the initial hearing, testified that Father had refused to take random drug

screens and to participate in home-based services. Id. at 47. FCM Plew also had

concerns about the children’s medical care, noting that D.H.’s asthma had led to him

being “admitted four times to the ICU and then [he] had three additional trips to the ER

just this year.” Id. at 46. After the hearing, the trial court determined that D.L.H. and

D.H. were CHINS. Father now appeals.




                                             4
                                Discussion and Decision

      On appeal, Father argues that there is insufficient evidence to support the trial

court’s determination that his sons are CHINS. The CHINS petition was based on

Indiana Code section 31-34-1-1, which provides:

      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.

“Because a CHINS proceeding is a civil action, 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.E., 919

N.E.2d 102, 105 (Ind. 2010). When the trial court’s judgment includes findings of fact

and conclusions of law, we apply a two-tiered standard of review and may not set aside

the findings or judgment unless they are clearly erroneous. In re A.C., 905 N.E.2d 456,

461 (citing Parmeter v. Cass Cnty. Dept. of Child Servs., 878 N.E.2d 444, 450 (Ind. Ct.

App. 2007)). We first consider whether the evidence supports the factual findings and

then whether the findings support the judgment. Id. Findings are clearly erroneous when

the record contains no facts to support them either directly or by inference, and a

judgment is clearly erroneous if it relies on an incorrect legal standard. Id. We give due


                                             5
regard to the trial court’s ability to assess witness credibility and will not reweigh

evidence. Id. Rather, we consider the evidence most favorable to the judgment with all

reasonable inferences drawn in favor of the judgment. Id.

        Father claims there is insufficient evidence in the record to support the trial court’s

determination that the children are CHINS. We disagree. Both children have severe

asthma and due to their parents’ failure to provide them with medical care in the past,

they are enrolled in a clinic for high-risk asthma sufferers. Father knew the children

required clinic check-ups every six to eight weeks as well as daily medication.3

Nonetheless, a social worker from Riley testified that the parents were not bringing the

children to their regularly scheduled clinic appointments—D.H., specifically, attended

only seven of his last nineteen scheduled doctor’s appointments and had recently gone

ten months without being brought into the clinic. The parents also failed to fill the

children’s prescriptions in the month of July. And Father’s younger son D.H., had not

fared well in the months leading up to the hearing: FCM Plew testified that D.H. had

been “admitted four times to the ICU and then [he] had three additional trips to the ER

just this year.” 4 Tr. p. 46. Father argues that after the CHINS filing, the children had

attended one scheduled doctor’s appointment, and at the time of the hearing, were current

on their medication. But this short period of compliance with the children’s medical


        3
           In its order formally adjudicating the children CHINS, the trial court noted that Father was not
familiar with the medications the children were prescribed. Appellant’s App. p. 89. Father argues that
this fact alone cannot support a CHINS finding. Appellant’s Br. p. 13. But Father’s familiarity with the
children’s medications, or lack thereof, is just one factor that the trial court considered. And the evidence
as a whole supports the trial court’s conclusion that the children are CHINS.
        4
         Father claims that DCS did not prove that his actions directly caused these hospitalizations.
Appellant’s Br. p. 12. But DCS need not do so; DCS must only prove that the children are impaired or
endangered and that they need care they are not currently receiving. DCS has done so here.
                                                     6
plans is dwarfed by the parents’ history of noncompliance, which stems back to 2008 and

most recently caused D.H. to be absent from the clinic for nearly a year. We conclude

that the trial court properly determined that D.L.H. and D.H. are CHINS because they are

seriously endangered by Father’s inability to provide them with the medical care they

require and proper care is unlikely to be provided without the coercive intervention of the

court.

         Father’s remaining arguments on appeal, particularly his claims regarding his

demeanor at the clinic and the possibility that he previously filled the children’s

prescriptions at an unknown pharmacy, amount to an invitation to reweigh the evidence,

which we will not do.      The CHINS statute does not require that a court wait until

a tragedy occurs to intervene. See Roark v. Roark, 551 N.E.2d 865, 872 (Ind. Ct. App.

1990). Rather, a child is a CHINS when he is endangered by parental action or inaction.

Id. The trial court properly determined that was the case here.

         Affirmed.

KIRSCH, J., and PYLE, J., concur.




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