MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Dec 18 2019, 9:29 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 APPELLANT                                   ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle                                    Curtis T. Hill, Jr.
Thomasson, Thomasson, Long &                             Attorney General of Indiana
Guthrie, P.C.
                                                         Katherine A. Cornelius
Columbus, Indiana                                        Robert J. Henke
                                                         Deputy Attorneys General
                                                         Indianapolis



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of W.S. (Minor                          December 18, 2019
Child),                                                  Court of Appeals Case No.
                                                         19A-JC-963
P.S. (Father),
                                                         Appeal from the Bartholomew
Appellant-Respondent,                                    Circuit Court
        v.                                               The Honorable Kelly Benjamin,
                                                         Judge
Indiana Department of Child                              The Honorable Heather Mollo,
Services,                                                Magistrate

Appellee-Petitioner.                                     Trial Court Cause No.
                                                         03C01-1801-JC-185



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019                  Page 1 of 11
[1]   P.S. (“Father”) appeals the Bartholomew Circuit Court’s adjudication of his

      son, W.S. (“Child”), as a Child in Need of Services (“CHINS”).1 Father argues

      that the Bartholomew County Department of Child Services (“DCS”) failed to

      prove by a preponderance of the evidence that Child is a CHINS and that no

      coercive intervention by the court was warranted. Finding no error on the part

      of the trial court, we affirm.


                                     Facts & Procedural History
[2]   Child was born to Father and Mother on December 8, 2017, at Columbus

      Regional Hospital (“CRH”). Tr. pp. 6–7. Child was diagnosed at birth with a

      significant cleft palate and cleft lip that caused immediate concern about his

      ability to breathe and eat. Tr. p. 52. The palate—the roof of the mouth—

      separates the mouth from the sinuses and helps separate food and saliva from

      the airway. Id. A cleft palate causes the danger of aspiration, when foreign

      objects such as foods or liquids are inhaled into the airway. Tr. p. 62. Babies

      with cleft lips struggle to make a seal around a bottle in order to suck. Tr. p. 52.

      For these reasons, medical staff at CRH kept Child hospitalized for three weeks

      after his birth. Tr. p. 8. During this time, medical staff endeavored to determine

      the most effective way to feed Child. Tr. pp. 53–54. They used orogastric and

      nasogastric intubation (respectively, “OG” and “NG”) and a specially




      1
       A.S. (“Mother”) did not file an Appellant’s Brief, and counsel did not file an appearance on her behalf.
      Pursuant to Indiana Appellant Rule 17(A), however, a party of record in the trial court shall be a party on
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019                  Page 2 of 11
      engineered bottle. Tr. p. 53. Even experienced CRH nurses, however, struggled

      to use the bottle to properly feed Child. Tr. p. 53. Family physician Dr.

      Amanda Dornfeld (“Dr. Dornfeld”) explained about the tube feeding method:


              [A]t first we used what’s called an OG tube, so we put a tube
              from his mouth into his stomach, and then once we were sure
              that both sinuses were patent, we switched a couple of days later
              to an NG tube. . . [W]e were concerned, you know, about
              sending [Child] home with an NG tube [because] NG tubes can
              easily come out, and so if it comes out, then you have to put it
              back in. And if you have to put it back in, you have to
              understand how to do that, and you have to be sure it’s in the
              right place, and you have to be sure you have clean and available
              medical tubing and medical supplies. So after really working with
              it, we felt we probably didn’t have the resources [at CRH] to
              teach parents how to take care of this special feeding[.]


      Tr. pp. 53–54.


[3]   Eventually, it was decided that Child should be transferred to Riley Children’s

      Hospital (“Riley”) where cleft palate specialists at the Cleft and Craniofacial

      Clinic could provide education to Child’s parents regarding tube feeding. Tr. p.

      54. Parents were trained in and passed “parent care,” which included

      verification that both Father and Mother could “place, pull, test, and feed”

      using an NG tube, and Child was discharged from Riley on December 21,

      2017. Tr. pp. 34, 39. Child’s discharge instructions were that he was to be fed

      by NG tube every three hours, eight times a day. Tr. pp. 10, 42. Riley medical

      staff also explained to parents at the time of discharge that Child would need at

      least two surgeries to repair his cleft lip and palate, but that the surgeries would


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019   Page 3 of 11
      occur only when Child reached an adequate weight. Tr. p. 41. To that end,

      Child would see a local pediatrician to monitor his weight gain, and the Riley

      Cleft and Craniofacial Clinic would track Child’s weight and progress prior to

      surgery. Id.


[4]   Child arrived home after discharge from Riley on a Thursday; parents attended

      a follow-up appointment with Child at CRH on Friday, December 22. Tr. p. 57.

      The next appointment, four days later, was cancelled by parents and

      rescheduled for the next day, but parents did not bring Child to that rescheduled

      appointment. Tr. p. 58. The appointment was again rescheduled, and parents

      again did not show. Id. Concerned, Dr. Dornfeld at CRH contacted Riley:


              So at that point, I called Riley, because I knew they had an
              appointment with Riley on Monday [January 1, 2018], with the
              cleft palate clinic, and I wanted them to know if the family came,
              please call us [at CRH], because we wanted to get him back in
              our system. And I wanted them to know that we had not seen
              him for a week and we were concerned[.]


      Tr. p. 58.


[5]   On December 29, 2017, DCS received a report of potential medical neglect

      based on the cancelled, rescheduled, and missed appointments. Tr. p. 25. Child

      was not present at the Monday, January 1, 2018, appointment at Riley. Id. at

      26. He was also not present at a rescheduled appointment at Riley on January

      8, 2018. Id. DCS then received an additional report of medical neglect based on

      the missed January 8 appointment. Id. On January 9 and January 11, a DCS

      Family Case Manager (“FCM”) spoke to Mother at Child’s home. Tr. pp. 27–
      Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019   Page 4 of 11
      28. Mother explained Child was being fed using a bottle because they had run

      out of NG feeding tubes. Tr. p. 28. At the second home visit, a DCS supervisor

      scheduled a same-day appointment with Child’s primary care physician, Dr.

      Dornfeld, and the FCM accompanied Mother and Child to that appointment.

      Tr. p. 29.


[6]   January 11 was the first time Child had received medical care since December

      22, 2017, the day after he was discharged from Riley. Child was diagnosed with

      failure to thrive, found to be dangerously underweight, and suffering from

      severe diaper rash. Tr. pp. 59–60. Dr. Dornfeld admitted Child to CRH at that

      time, and Child was removed from the care of his parents. Tr. pp. 29–30. When

      the DCS FCM read parents their rights, Father reacted with confusion and

      stated, “[D]o what you have to do, it’s not like I see him anyway.” Tr. p. 30.


[7]   Child has been in the care of placement Serina Roberts (“Roberts”) since

      January 15, 2018. Tr. p. 78. A CHINS fact-finding hearing was held on March

      12, 2018. At the hearing, Roberts testified that Child had had six or seven

      medical appointments in the two months since he had been placed in her care.

      Id. Mother attended all of the pediatrician appointments. Id. at 79. Parents had

      missed only one appointment at Riley. Id. Parents had not fed Child during any

      of these appointments, and there had been no supervised visits between Child

      and parents. Id. at 78. Roberts noted that Child’s surgery was coming up on

      Thursday, March 15, 2018, and that post-op appointments would be “pretty

      much back-to-back after that, with follow-ups.” Id. After testimony at the fact-

      finding hearing, the trial court adjudicated Child a CHINS and set a

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019   Page 5 of 11
      dispositional hearing for April 10, 2018. Tr. p. 94. The court explained its

      reasoning:


              I still think the coercive intervention of the Court is needed, in
              particular with this young, with this child having a very
              important surgery coming up on Thursday, and the expectations
              that the follow through and the appointments will be very,
              absolutely just as critical for his well being and for his, for his
              very life.


      Tr. p. 95.


[8]   A dispositional hearing was held on April 10, 2018, and a fact-finding order

      was issued on July 10, 2018. Appellant’s App. pp. 6–7. The court’s

      dispositional order directing services for the family and continuing wardship of

      Child with DCS was issued on April 5, 2019. Appellant’s App. p. 9. Father’s

      timely notice of appeal was filed on April 29. Appellant’s App. p. 10.


                                       Discussion & Decision
[9]   The Fourteenth Amendment to the United States Constitution protects the

      fundamental right of a parent to establish a home and raise a child. Bester v. Lake

      Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Thus, to be

      adjudicated a CHINS, a child must be “seriously impaired or endangered ‘as a

      result of the inability, refusal, or neglect of the child’s parent’ to provide

      necessary care.” S.K. v. Ind. Dep’t of Child Servs., 57 N.E.3d 878, 883 (Ind. Ct.

      App. 2016). The purpose of CHINS proceedings is to protect the child, not to

      punish the parent. In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). Furthermore, a


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019   Page 6 of 11
       CHINS adjudication reflects the status of a child and does not establish the

       culpability of a particular parent. Id. at 105. The State of Indiana is authorized

       under its power of parens patrie to intervene when necessary to protect a child. In

       re V.H., 967 N.E.2d 1066, 1072 (Ind. Ct. App. 2012). “The intrusion of a

       CHINS judgment. . . must be reserved for families who cannot meet [the child’s]

       needs without coercion–not those who merely have difficulty doing so.” In re

       S.D., 2 N.E.3d 1283, 1285 (Ind. 2014).


[10]   CHINS proceedings are civil in nature, and DCS must prove each element by a

       preponderance of the evidence. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).

       In reviewing the trial court’s decision, we consider only the evidence that

       supports the trial court’s decision and all reasonable inferences drawn

       therefrom; we reverse only upon a showing that the trial court clearly erred and

       will not reweigh evidence or judge witness credibility. Id. A decision is clearly

       erroneous if the evidence does not support the trial court’s findings or if the trial

       court applied an incorrect legal standard. In re D.J., 68 N.E.3d 574, 578 (Ind.

       2017).


[11]   Where the trial court makes findings of fact and conclusions of law in support

       of its determination that a child is a CHINS, we apply a two-tiered standard of

       review. In re S.D., 2 N.E.3d at 1287. First, we consider whether the evidence

       supports the findings, and second, we consider whether the findings support the

       judgment. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019   Page 7 of 11
[12]   Here, the juvenile court found Child to be a CHINS pursuant to Indiana Code

       section 31-34-1-1. Father argues on appeal that DCS failed to prove by a

       preponderance of the evidence that Child’s physical or mental condition was

       seriously impaired or endangered as a result of Father’s inability, refusal, or

       neglect to supply Child with the necessary food, clothing, shelter, medical care,

       education, or supervision and that Father could not provide Child with the

       needed care without the coercive intervention of the court. Appellant’s Br. at 4.


[13]   Father challenges whether the evidence established that Child’s poor physical

       condition had been caused by improper feeding by Father. Appellant’s Br. at

       11. Specifically, Father disputes the trial court’s findings that the discharge

       instructions provided to Father by Riley staff instructed Father to feed Child

       only by NG tube. Id. The Riley discharge nurse testified, however, that the

       instructions provided specified that Child should be fed only by NG tube. Tr. p.

       45. Father’s argument relies on the fact that staff at CRH initially instructed

       him and Mother to feed Child using both NG tube and bottle. Appellant’s Br. at

       12. Father did not object to Mother feeding Child exclusively by bottle. Tr. pp.

       10, 82. Father also did not recognize that Child was not receiving sufficient

       nutrition despite being fed by bottle. Father did not assist in Mother’s effort to

       obtain feeding tubes. At the time of Child’s removal, Child was one month old,

       yet he had not gained weight—in fact, he had lost weight—and he was

       suspected of being malnourished. The trial court did not err in concluding that

       Child’s physical condition was seriously endangered as a result of Father’s

       neglect to supply Child with necessary food.


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019   Page 8 of 11
[14]   Also at the time of Child’s removal, Child had missed three appointments with

       his local pediatrician and one follow-up appointment with the specialists at

       Riley. Tr. pp. 26–27. Father challenges whether this evidence supports the trial

       court’s determination that Father’s inability, refusal, or neglect seriously

       impaired or seriously endangered Child’s physical condition. Appellant’s Br. at

       12. Father explained that he understood the importance of follow-up

       appointments, but that his employment schedule had prevented him from

       ensuring that Child attended scheduled medical appointments. Tr. p. 83. Father

       testified that he did not take advantage of Medicaid transportation because he

       preferred to take Child to appointments himself. Tr. p. 88. The trial court heard

       testimony from Dr. Dornfield, explaining in reference to Child’s condition

       when Child was belatedly seen by a doctor, that “if [Child] hadn’t been found

       when he was found, [] he likely could have died.” Tr. p. 69. Child’s physical

       condition at the time of his removal by DCS was severe enough that he was

       admitted to a hospital that day. Tr. p. 29. Father did not make use of several

       resources provided at the time of Child’s discharge from Riley specifically

       intended to aid Mother and Father in attending medical appointments: free

       Medicaid transportation, gas cards, and work excuses. Tr. p. 35. The trial court

       did not err in concluding that Child’s physical condition was seriously

       endangered as a result of Father’s inability, refusal or neglect to ensure Child

       received medical care.


[15]   Finally, Father argues that the trial court erred in finding that the coercive

       intervention of the court was necessary because Father testified that he was


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019   Page 9 of 11
       “open to cooperating with and agreeable to the services recommended by

       DCS,” and because both parents “wanted to do whatever was necessary for

       Child to return home.” Appellant’s Br. p. 12. Father observes that we consider

       a family’s condition not just when the case was filed, but also when it is heard,

       and that “doing so avoids punishing parents for past mistakes when they have

       already [been corrected].” In re D.J., 68 N.E.3d at 580–81. Again, we stress that

       a CHINS determination is for the purpose of protecting a child, not punishing a

       parent. The trial court heard testimony from medical professionals about

       Child’s complex and fragile physical condition, and about Father’s failure to

       properly understand and address Child’s condition. Dr. Dornfield testified that

       she had “real concern that [Child] could have malnourishment, failure to thrive,

       and even die from aspiration if he is returned to [to parents’ care].” Tr. p. 69. In

       his appeal, Father asks us to reweigh the evidence before the trial court, which

       we decline to do. The CHINS statute does not require juvenile courts to “wait

       until tragedy occurs to intervene.” Roark v. Roark, 551 N.E.2d 865, 872 (Ind. Ct.

       App. 1990).


                                                 Conclusion
[16]   The trial court’s focus was appropriately on whether Father needed to be

       coerced into providing or accepting necessary treatment for Child. The trial

       court did not err in determining that Father did not demonstrate an ability to

       understand the severity of Child’s physical needs nor an ability to consistently

       accept and follow through with needed medical care. In this case, the evidence

       clearly supports the trial court’s factual findings, and the findings in turn

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019   Page 10 of 11
       support the court’s adjudication of Child as a CHINS. DCS proved by a

       preponderance of the evidence that Child’s needs were unlikely to be provided

       for without the coercive intervention of the court. Accordingly, we affirm the

       trial court’s adjudication of Child as a CHINS.


[17]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019   Page 11 of 11
