MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
                                                                        May 29 2020, 9:37 am
court except for the purpose of establishing
the defense of res judicata, collateral                                       CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Mark Small                                               Monika Prekopa Talbot
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of A.G. (Minor                             May 29, 2020
Child), Child in Need of                                 Court of Appeals Case No.
Services,                                                20A-JC-298
J.L. (Mother),                                           Appeal from the Montgomery
                                                         Circuit Court
Appellant,
                                                         The Honorable Harry A. Siamas,
        v.                                               Judge
                                                         Trial Court Cause No.
Indiana Department of Child                              54C01-1910-JC-272
Services,
Appellee.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020                      Page 1 of 11
[1]   J.L. (“Mother”) appeals the trial court’s order adjudicating A.G. to be a child in

      need of services (“CHINS”). We affirm.

                                       Facts and Procedural History

[2]   A.G. was born in August 2016 and is the child of Mother and R.G. (“Father”).

      In November 2018, A.G. was seen in an emergency room following a car

      accident and several dental problems were discovered. Dr. Blair Jones-

      Bumgardner (“Dr. Jones”), a dentist and pediatric dental specialist, determined

      A.G. had severe early childhood caries and developed a treatment plan. Dr.

      Jones removed certain teeth, placed crowns, and noted there were still four

      smaller cavities which needed to be addressed. 1 The dental office later

      contacted Mother, Mother asked if all the treatment performed was necessary,

      she was informed it was necessary because A.G. had a high chance of an

      abscess and serious infection, and Mother later indicated she would be taking

      A.G. to another dentist.


[3]   On October 17, 2019, the Indiana Department of Child Services (“DCS”) filed

      a petition alleging A.G. was a CHINS and that on October 14, 2019, DCS

      received a report that A.G. was screaming in pain due to the condition of her

      teeth and was taken to the emergency room where she received a prescription

      for the infection. Also on October 17, 2019, the court held an initial hearing at

      which Father stated he believed A.G. needed immediate care. Zoey Rowe, an



      1
        During the treatment, A.G. swallowed a crown and it was determined by radiograph that the crown was in
      the child’s stomach and would pass.

      Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020                  Page 2 of 11
      assessment worker with DCS, testified that, in October 2019, DCS received a

      report that A.G. had been prescribed an antibiotic at Riley Children’s Hospital

      because she had an abscess in her mouth. She indicated that Mother told the

      dentist that she was not giving A.G. the antibiotic. She further indicated the

      dentist had stated that the abscess, if not treated, could lead to cheek swelling,

      an abscess in the brain, or possibly death from a blood infection.


[4]   Rowe indicated she had a conversation with Mother about the importance of

      the antibiotic. When asked about Mother’s response, Rowe testified: “She at

      first you know she laughed and said she won’t die and then she said I’ll just give

      it to her right now, but it was already after we had had this conversation

      multiple times in the past even with our last assessment.” Transcript Volume II

      at 12-13. Rowe indicated Mother did not give the antibiotic to A.G. when she

      was there. When asked if she had a further conversation with Mother about

      administering the antibiotic, Rowe replied: “She told me that she had not given

      her the antibiotic at that point. That was the contact that I had with her last

      night she was swearing at me on the phone while I was dropping her daughter

      off with her father.” Id. at 13. She indicated she removed A.G. from Mother

      on October 16, 2019, and placed her with Father. She also indicated Father

      lived in Iowa, drove to Indiana every two weeks for visitation, and would

      temporarily be staying in Indiana. The court found that Father was an

      appropriate placement for A.G. and ordered Father, in consultation with DCS,

      to obtain appropriate dental care for her.




      Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020   Page 3 of 11
[5]   On October 18, 2019, Father took A.G. to an appointment with Dr. Jones.

      Following a consultation with Father, Dr. Jones performed treatment which

      included the extraction of three teeth due to infection or large decay and the

      placement of crowns on two teeth.


[6]   On January 6, 2020, the court held a hearing on the petition alleging A.G. was

      a CHINS at which it heard testimony from Dr. Jones, family case manager

      Griffin Flavin (“FCM Flavin”), Father, Mother, and the court appointed

      special advocate (“CASA”).


[7]   Dr. Jones testified that A.G.’s primary care physician had a food log for A.G.

      due to her low weight and had recommended a dental evaluation. Dr. Jones

      testified “[s]o there [were] four teeth left to complete treatment a year ago when

      mom declined to come back to our office,” “[o]f those four teeth that were not

      completed, two of them had abscesses and then two of them needed stainless

      steel crowns,” and “[m]eaning that over the course of the year that mom did

      not continue with treatment the decay got progressively worse and two actually

      became infected.” Id. at 38. When asked about the danger of having an

      untreated abscess, Dr. Jones replied “[h]ospitalization or death,” “[c]hildren

      especially with a vulnerable immune system and things of that nature,

      hospitalizations and need for IV antibiotics are very, very high,” and “I recently

      just had a child waiting on a root canal very similar to the infection [A.G.] had

      actually had to go to the hospital for IV antibiotics because infections can

      spread so rapidly in children.” Id. at 39. On cross-examination, Dr. Jones

      indicated A.G.’s need for emergency dental care has been addressed.

      Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020   Page 4 of 11
[8]   FCM Flavin testified that he was assigned to the case in October 2019, that

      Mother indicated she had attended Cummins but did not sign a release of

      information, and that, when he asked her why she would not release the

      information to DCS, she said she did not trust its assessment and she had been

      diagnosed “with PTSD and I believe anxiety.” Id. at 65. He testified that he

      supervised eleven or twelve visits between Mother and A.G. and at one point

      Mother told A.G. that she could not trust anything Father said. He testified

      DCS was concerned that, if A.G. were returned to Mother, there would be a

      resurgence of a lack of dental care and Mother would not follow through with

      doctors’ recommendations.


[9]   Mother testified she believed in an all-natural way of raising a child and the

      foundation of her belief system was that “[t]he food that you eat, the exercise

      you do, what you do stimulating your body, your spirit, your entire system

      relies on your whole health, everything you do, fruits and vegetables, basically.”

      Id. at 77. When asked “where is the basis for that belief? Is it religious, is it

      spiritual, what is it, where does it come from,” she answered “[a] little bit of all

      of it philosophical, religious.” Id. She indicated her belief system was Christian

      and her denomination was Methodist. Mother testified she was opposed to

      vaccines but not to antibiotics. She indicated she made appointments with

      other dentists but did not attend and testified “I had gotten a job, car broke

      down, lots of bad things in the same situation. [A.G.] was just never unhealthy

      and I just kept an eye on it.” Id. at 87. She indicated she allowed radiographs

      even though she did not believe in them, she had limited financial resources,


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020   Page 5 of 11
       earned about $7,000 a year, and worked at a newspaper and a restaurant. On

       cross-examination, when asked about the basis for her beliefs about “fluoride,

       antibiotics and such,” Mother answered “the basis of this is that I was on

       Xanax and pain pills from ten to twenty-eight years old and it destroyed my

       brain health and since then I have learned to live a proper life without coca cola

       and Totino’s pizzas and drugs to fulfill just waking up in the morning.” Id. at

       90-91. When asked if she had mental health issues, she answered: “Before I

       met [Father] I had generalized anxiety disorder. After that relationship, post-

       traumatic stress disorder.” Id. at 100. She indicated she was treating those

       issues through exercise, acupuncture, and therapy with Cummins Mental

       Health.


[10]   DCS’s counsel argued that A.G. had a prescription from the hospital to treat

       her infection, Mother was not giving the prescription to A.G., and DCS had to

       remove A.G. so that she would receive treatment and follow-up care. She

       further argued that, even if Mother had certain beliefs, there was an exception

       for when a child is placed in a life-threatening situation and that A.G. would

       not be safe and Mother would not participate in necessary services without the

       intervention of the court.


[11]   The CASA testified that Mother’s “decisions for medical care are eccentric at

       best and do pose a danger to the child should she become ill.” Id. at 111. The

       CASA also testified she did not think it would be safe, at this point, to return

       the child to Mother’s care.



       Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020   Page 6 of 11
[12]   The court stated Mother had a right to her belief system until A.G. was placed

       “in very serious jeopardy and that’s what happened here.” Id. at 112. It also

       found “[t]he dental risk is over for now, but it wasn’t taken care of by mother it

       was taken care of by father and the DCS” and it had “to assess whether the

       coercive intervention of the court is necessary going forward to ensure that the

       child will receive appropriate medical and dental care.” Id. at 113.


[13]   The court issued an order finding A.G. to be a CHINS and providing:

               l. Mother’s actions seriously endangered her daughter, refusing to take
               care of child’s dental issues.

               2. In November 2018, [M]other took child to Dr. Jones for dental care
               but her reaction when child swallowed the crown requiring another x-
               ray by not following up to complete the 4 cavities was neglect: child had
               developed abscesses in the untreated cavities in November 2019.

               3. Doctor believed that if the abscesses had not been treated, child was
               at risk of dying.

               4. Mother’s beliefs placed the child in serious jeopardy.

               5. Father saw the condition of the child’s mouth and asked [M]other to
               get the child dental care and mother said she would take care of it.

               6. Child’s dental issues have been resolved by the care of [Father] and
               DCS; therefore, coercive intervention of the Court is needed.

               7. Mother cannot put aside her beliefs to keep the child safe. She needs
               services to educate her and rehabilitate [M]other to protect the child.

               8. [M]other’s mental health issues prevent her from understanding or
               parenting appropriately.

       Appellant’s Appendix Volume II at 13-14. An entry in the chronological case

       summary indicates the court held a disposition hearing, ordered that A.G.
       Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020   Page 7 of 11
       should continue placement with Father under DCS supervision, approved

       recommended services, stated the permanency plan is reunification and

       Mother’s visitation would continue to be supervised at this time, and set a

       review hearing.


                                                   Discussion

[14]   Mother claims the trial court erred in concluding A.G. was a CHINS. She

       argues that her rights to religion and conscience were violated as the court did

       not properly consider Ind. Code § 31-34-1-14, “[t]here is no statement in the

       statute that placing a child in serious ‘jeopardy’ qualifies that child to be in need

       of services,” and she believes in an all-natural approach to health. Appellant’s

       Brief at 19. She also argues the reasons for removal had been resolved by the

       time of the hearing.


[15]   We do not reweigh the evidence or judge the credibility of witnesses and

       consider only the evidence which supports the trial court’s decision and

       reasonable inferences drawn therefrom. In re S.D., 2 N.E.3d 1283, 1286-1287

       (Ind. 2014), reh’g denied. We apply the two-tiered standard of whether the

       evidence supports the findings and whether the findings support the judgment.

       Id. Ind. Code § 31-34-1-1 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


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020      Page 8 of 11
                        necessary food, clothing, shelter, medical care, education, or
                        supervision:

                                (A) when the parent, guardian, or custodian is financially able
                                to do so; or

                                (B) due to the failure, refusal, or inability of the parent,
                                guardian, or custodian to seek financial or other reasonable
                                means to do so; 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.

       The CHINS statute does not require a court to wait until a tragedy occurs to

       intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Rather, a

       child is a CHINS when he or she is endangered by parental action or inaction.

       Id. The purpose of a CHINS adjudication is to protect children. Id.


[16]   Ind. Code § 31-34-1-14 provides:


               If a parent, guardian, or custodian fails to provide specific medical
               treatment for a child because of the legitimate and genuine practice
               of the religious beliefs of the parent, guardian, or custodian, a
               rebuttable presumption arises that the child is not a child in need of
               services because of the failure. However, this presumption does not
               do any of the following:

                   (1) Prevent a juvenile court from ordering, when the health of a
                   child requires, medical services from a physician licensed to
                   practice medicine in Indiana.

                   (2) Apply to situations in which the life or health of a child is in
                   serious danger.

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020     Page 9 of 11
       Although an adult generally cannot be forced to undergo medical treatment

       against his religious principles, a parent’s decision to refuse lifesaving medical

       treatment for a minor child must yield to the State’s interest in protecting the

       health and welfare of the child. Schmidt v. Mut. Hosp. Servs., Inc., 832 N.E.2d

       977, 982 (Ind. Ct. App. 2005).


[17]   To the extent Mother does not challenge the trial court’s findings of fact, the

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied.


[18]   With respect to Mother’s argument regarding Ind. Code § 31-34-1-14, although

       the trial court’s order did not use the term “serious danger,” the court found

       that Mother’s beliefs placed A.G. in “serious jeopardy” and also found that her

       actions “seriously endangered” A.G., see Appellant’s Appendix Volume II at 13,

       and it is clear the court considered the statutory exception and determined that

       DCS met its burden. The evidence as set forth above and in the record,

       including the testimony of Dr. Jones, supports the court’s finding, and we

       cannot say reversal is required on this basis.


[19]   As for the argument the reasons for A.G.’s removal had been resolved, the

       record shows that A.G. received treatment following the intervention of DCS

       and the court. The court specifically found that Mother cannot put aside her

       beliefs to keep A.G. safe and needs services so that she can protect A.G. and

       that her mental health issues prevent her from parenting appropriately. To the


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020   Page 10 of 11
       extent Mother invites us to reweigh the evidence and judge the credibility of

       witnesses, we are unable to do so. See In re S.D., 2 N.E.3d at 1286. The court

       was able to consider Mother’s actions and omissions over time and ability to

       protect A.G. The court’s findings and adjudication of A.G. as a CHINS are not

       clearly erroneous.


[20]   For the foregoing reasons, we affirm the trial court’s order.


[21]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-298 | May 29, 2020   Page 11 of 11
