MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this
                                                                                FILED
Memorandum Decision shall not be regarded as                               Dec 09 2019, 9:06 am
precedent or cited before any court except for the
                                                                                CLERK
purpose of establishing the defense of res judicata,                        Indiana Supreme Court
                                                                               Court of Appeals
collateral estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Andrew R. Falk                                         Curtis T. Hill, Jr.
Hendricks County Public                                Attorney General of Indiana
Defender’s Office                                      Abigail R. Recker
Danville, Indiana                                      Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE

    COURT OF APPEALS OF INDIANA

In the Matter of A.W. (Child in                            December 9, 2019
Need of Services)                                          Court of Appeals Case No.
                                                           19A-JC-1375
        and
                                                           Appeal from the Hendricks
K.W. (Mother),                                             Superior Court
Appellant-Respondent,                                      The Hon. Karen M. Love, Judge
                                                           Trial Court Cause No.
        v.                                                 32D03-1901-JC-3

Indiana Department of Child
Services,
Appellee-Petitioner.




Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019                    Page 1 of 14
                                                Case Summary
[1]   A.W. (“Child”) was born in 2001 to K.W. (“Mother”) and Father.1 In late

      2018, Child, who had been living with Father, came to live with Mother in

      Hendricks County. On January 14, 2019, the Indiana Department of Child

      Services (“DCS”) visited the home and found it to be filthy and in poor

      condition, observed drug paraphernalia and prescription drugs in the open, and

      discovered very little food in the home. DCS removed Child from the home

      and petitioned the juvenile court to find her a child in need of services

      (“CHINS”), and the State charged Mother with several crimes. After a hearing,

      the juvenile court adjudicated Child to be a CHINS. Mother contends that the

      juvenile court’s adjudication is clearly erroneous. Because we disagree, we

      affirm.


                                Facts and Procedural History
[2]   Child was born on August 10, 2001. Prior to DCS’s involvement, Child lived

      with Father in Illinois from August of 2018 until December of 2018. At that

      time, Father told Mother that if she did not take Child in, he was going to “put

      her into the system.” Tr. Vol. II p. 42. Consequently, Child moved to Indiana

      to live with Mother, who, on December 11, 2018, had been evicted from her

      apartment in Jamestown. When Child moved in with Mother, they were

      residing in a home with three other adults and two other children.




      1
          Father does not participate in this appeal.




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 2 of 14
[3]   On January 14, 2019, DCS received a report alleging that drugs were being

      dealt out of the home in which Child was living and that the home was in a

      poor condition. DCS family case manager (“FCM”) Tiffany King visited the

      home that day. When FCM King visited the home, she observed cigarette butts

      on the floor, drug paraphernalia, beer cans and Crown Royal bottles,

      prescription drug bottles, a ceiling that was falling in, holes in the floors and

      walls, feces in the bathtub and on the bathroom floor, moldy food items,

      cobwebs throughout the house, and a smoky living room. The only food in the

      home was one onion, some butter, hamburger, and three cans of other food.

      Other than the living room, which had a fireplace, the rest of the home was very

      cold, “probably 25 to 30 degrees[.]” Tr. Vol. II p. 59. Mother was not in the

      home when FCM King was there, but King was able to speak with Mother by

      telephone. Mother said that she was on her way back from Illinois, the

      condition of the home was not poor when she left, and she had not used drugs.

[4]   Child’s hair was matted, her teeth appeared to have not been recently brushed,

      and her hands and clothing were very dirty. Child told FCM King that she had

      not been to school since she had lived with Father in Illinois. Child told FCM

      King that she had depression and other mental-health needs but that she had

      not been taking her medication for them. Authorities arrested the two adults

      who were in the home at the time, and DCS removed Child and the other

      minor children and placed Child in foster care.

[5]   On January 16, 2019, DCS filed a petition alleging Child was a CHINS. The

      same day, the State charged Mother with Level 6 felony neglect of a dependent,




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 3 of 14
      Level 6 felony maintaining a common nuisance, and Class C misdemeanor

      possession of paraphernalia. On January 17, 2019, DCS moved for leave to

      amend its petition along with an amended petition alleging that the adults in the

      home where Child was living were using methamphetamine, law enforcement

      found methamphetamine pipes in the home, the home was in a deplorable

      condition with no working heat or electricity and feces in the bathtub and on

      the floor, there were alcohol and prescription pill bottles strewn throughout the

      house within reach of Child and other children in the home, Child appeared

      dirty like she had not bathed for several days, and Child was not enrolled in

      school and had not attended in months. On January 25, 2019, the juvenile

      court entered its order granting DCS leave to amend its CHINS petition. On

      January 22, 2019, the State charged Mother in Boone County with two counts

      of Level 2 felony dealing in methamphetamine, one count of Level 4 felony

      possession of methamphetamine, one count of Class A misdemeanor dealing in

      marijuana, one count of Class B misdemeanor possession of marijuana, and

      three counts of Class C misdemeanor possession of paraphernalia.

[6]   On February 27 and April 30, 2019, the juvenile court held a factfinding

      hearing. Mother admitted that she has been incarcerated at least ten times

      throughout her life. Child disclosed that when she was younger she had lived

      in foster care with her sister, with her grandmother and aunt, and with Father,

      who inflicted “major [physical] abuse” on her. Tr. Vol. II p. 65. Child had also

      lived with Mother “on and off during that time[,]” but Mother was incarcerated

      during most of it. Tr. Vol. II p. 65.




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 4 of 14
[7]   When asked whether she had ongoing untreated substance abuse issues,

      Mother said, “Yes and no.” Tr. Vol. II p. 40. When asked whether she was

      using illegal substances prior to her incarceration, Mother indicated that she

      wanted to “plead the Fifth.” Tr. Vol. II p. 41. The juvenile court indicated that

      it would draw a negative inference from Mother’s assertion of her Fifth

      Amendment right not to answer.

[8]   FCM Yolanda Smith testified regarding Child’s adjustment to foster care.

      Child, at first, struggled in foster care—she stole alcohol and returned to the

      foster home intoxicated, she stole from Walmart several times, fought with

      younger kids, hoarded food, and struggled with communication. Child has

      “large gaps in her educational background and is currently testing at about a 7th

      grade level.” Tr. Vol. II p. 75. Child was doing better but still struggled with

      making appropriate decisions, including refraining from stealing and fighting,

      maintaining her hygiene, and with bed-wetting. Child was dealing with the

      bed-wetting issue prior to her removal. Child has an appointment scheduled to

      see a urologist at Riley Children’s Hospital, the foster mother has provided her

      Depends undergarments, and her independent-living worker made her a chart

      to make sure she bathes regularly, brushes her teeth, and dresses appropriately.

      Child was not taking care of her own personal hygiene on her own, and FCM

      Smith did not believe that she would but for DCS’s involvement. While in

      foster care, Child is also participating in tutoring twice a week, therapy once a

      week, and supervised visitation once a week.




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 5 of 14
[9]    FCM Smith testified that it was necessary for DCS to be involved with Child

       for her own “safety and well-being” to ensure that services are being provided

       to address Child’s hygiene issues and educational needs, as well as to ensure

       that services are in place for Mother to treat her substance-abuse issues and

       housing needs. Tr. Vol. II p. 69. Court Appointed Special Advocate

       (“CASA”) Courtney Hayes testified that DCS needed to remain involved with

       Child because she “has some real challenges” and that she has been “making

       improvements, but she does have a long way to go and I think she needs the

       support services that we have in place around her.” Tr. Vol. II p. 74.

[10]   Following the hearing, the juvenile court found Child to be a CHINS. On May

       22, 2019, the juvenile court held a dispositional hearing, and on May 28, 2019,

       entered its dispositional decree and parental participation orders ordering

       Mother to participate in services. The juvenile court ordered Mother to submit

       to random drug screens, attend all scheduled visitations, and participate in

       home-based casework and home-based counseling. The juvenile court also

       ordered Mother to complete a parenting assessment, a substance-abuse

       assessment, a mental-health evaluation, a psychological evaluation, a domestic-

       violence assessment, a psychiatric evaluation, and a family functional

       assessment, and all recommended services as a result of the evaluation or

       assessment.


                                  Discussion and Decision
[11]   Indiana Code section 31-34-1-1 provides that a child is a CHINS before the

       child becomes eighteen years of age if



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 6 of 14
               (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.
[12]   The purpose of a CHINS adjudication is to “protect children, not [to] punish

       parents.” In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 580–81 (Ind.

       2017) (citations omitted). DCS bears the burden of proving that a child is a

       CHINS by a preponderance of the evidence. Ind. Code § 31-34-12-3; see also In

       re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The Indiana Supreme Court has

       stated that

               [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.E., 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 [juvenile] court’s decision and
               reasonable inferences drawn therefrom. Id. We reverse only
               upon a showing that the decision of the [juvenile] court was
               clearly erroneous. Id.
       In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (footnote omitted). A juvenile

       court need not wait until a tragedy occurs before adjudicating a Child a

       CHINS. In re R.S., 987 N.E.2d 155, 158 (Ind. Ct. App. 2013). Mother

       contends that the juvenile court’s conclusion that Child’s physical or mental



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 7 of 14
       condition is seriously impaired or endangered is clearly erroneous and DCS

       failed to establish that Child’s needs were unlikely to be met without State

       coercion.

                   I. Whether Several of the Juvenile Court’s
                   Findings Are Unsupported by the Evidence
[13]   Mother challenges several of the juvenile court’s findings as clearly erroneous.

       Mother is correct that the following findings are erroneous: she was charged

       with four misdemeanor drug offenses (when she was actually charged with

       five), she was charged with two Level 4 felonies (when she was actually charged

       with two Level 6 felonies), and the only food found in the home was an onion,

       some butter, and some canned goods (when hamburger was also found). These

       errors, even when taken as a whole, can only be considered inconsequential.

       We will not reverse a judgment for harmless error, which is error that does not

       prejudice the substantial rights of a party. Ind. Trial Rule 61. However one

       looks at it, Mother was facing several serious criminal charges and Child was

       living in horrible conditions; none of the juvenile’s courts errors change that.

[14]   As for Mother’s other challenges, she challenges the finding that “[Child] told

       FCM King she had been living in the home a few months and the last time she

       went to school was when she lived with her father.” Appellant’s App. Vol. II p.

       72. FCM King, however, testified to exactly that: “[Child] stated that she lived

       there for a few months” and “she stated the last time she was in school is when

       she lived with her dad in Illinois.” Tr. Vol. II p. 48. The record supports the

       finding.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 8 of 14
[15]   Mother also challenges the finding that “[a] few days before 1-14-19 [Child’s]

       brother died. Mother was not present in the home on 1-14-19 because she went

       to Illinois to talk to a lawyer about filing a wrongful death lawsuit.”

       Appellant’s App. Vol. II p. 73. Mother seems to suggest that the juvenile court

       is required to credit her version when someone else has not provided testimony

       to the contrary. As the Indiana Supreme Court explained in Thompson v. State,

       804 N.E.2d 1146, 1149 (Ind. 2004), however, “factfinders are not required to

       believe a witness’s testimony even when it is uncontradicted.” Mother’s

       argument is a request for us to reweigh the evidence, which we will not do. In

       re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014).

[16]   Finally, finding 27 states that “[t]he Court does not find [Mother] credible.

       [Mother] reported that [Child] has been previously diagnosed with ADD,

       ODD, bipolar and major depressive disorder. Mother reported that [Child]

       started seeing a psychiatrist when she was five years old.” Appellant’s App.

       Vol. II p. 73. In challenging this finding, Mother argues that the juvenile court

       finds her to not be credible, but then finds some of her statements credible,

       including Child’s diagnosis. In other words, Mother seems to be arguing that

       the juvenile court’s findings are internally inconsistent and therefore improper.

       We think, however, that a more reasonable interpretation is that the finding as a

       whole indicates that the juvenile court did not find Mother’s statements

       regarding Child’s diagnosis and prior medical care to be credible. Mother is

       asking us to reweigh the evidence, which we will not do. See In re K.D., 962

       N.E.2d at 1253.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 9 of 14
[17]   In the end, the findings that Mother challenges are largely supported by the

       record, and none of the juvenile court’s errors are substantial enough to require

       reversal. See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (holding that

       because there was sufficient evidence outside the erroneous finding to support

       the trial court’s conclusion, “the erroneous finding was merely harmless

       surplusage that did not prejudice” the mother and is not grounds for reversal),

       trans. denied.

                   II. Child’s Physical or Mental Condition Is
                        Seriously Impaired or Endangered
[18]   Mother challenges the juvenile’s conclusion that Child’s physical or mental

       condition is seriously impaired or endangered. The record contains ample

       evidence that supports such a conclusion. Child was living in filth, was not

       receiving the educational care that she needed, was unable to attend to her own

       hygiene, and had one parent who refused to care for her and another who was

       incarcerated. When DCS removed Child, she was living in a home that had

       feces on the bathroom floor and in the bathtub, a ceiling that was falling in,

       holes all over the floors and walls, drug paraphernalia, inadequate heat, and

       very little food. Child told FCM King that she had been living with Mother in

       this home for a few months and that she had not been to school since she lived

       with Father in Illinois. After her removal, it was discovered that she had “large

       gaps in her educational background” and tested at only a seventh-grade level.

       Tr. Vol. II p. 75. Additionally, Child needed a chart to remind her to bathe

       regularly, brush her teeth, and dress appropriately. Child also indicated to




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 10 of 14
       FCM King that she had mental-health issues but had not been taking her

       medication. Child was also hoarding food and struggling with bedwetting. It is

       reasonable to infer that Mother had failed to provide for Child’s care,

       education, mental health, and supervision.

[19]   Moreover, Child had no parent willing and/or able to care for her at the time of

       the final hearing. Father refused to be involved in the CHINS case or in Child’s

       life in general. Mother, who remained incarcerated as of the final hearing, was

       facing numerous charges, most of which were drug-related and strongly implied

       that Mother was also dealing with significant substance-abuse issues. Several of

       these charges were alleged to have been committed by Mother after DCS had

       removed Child and filed a CHINS petition. See In re J.L., 919 N.E.2d 561, 564

       (Ind. Ct. App. 2009) (noting that “[e]ven the filing of the CHINS petition was

       insufficient to deter Mother’s drug use as she continued using up to the date of

       her drug screens”).

[20]   Mother compares her circumstances to those at issue in M.K. v. Indiana

       Department of Child Services, 964 N.E.2d 240 (Ind. Ct. App. 2012). M.K.,

       however, is easily distinguished. In M.K., DCS intervened because the mother

       and her children—who were only in Indiana temporarily and who had housing

       and employment in Baltimore—were staying in a shelter and then a hotel. Id.

       at 242. We concluded that the evidence did not support a conclusion that the

       children were CHINS because the mother and the children were not “in and

       out of hotels and shelters” as DCS implied, and the mother “packed ample

       supplies” for the children. Id. at 246–47. Here, Mother was not meeting



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 11 of 14
       Child’s needs, as she did not supply Child with, inter alia, appropriate housing,

       supervision, or mental-health care and did not ensure that Child’s educational

       needs were being met. Mother was also incarcerated, unable to provide any

       care or supervision to Child, and had unresolved substance-abuse issues.

       Mother has failed to establish that the juvenile court’s conclusion that Child’s

       physical or mental condition was seriously impaired or endangered is clearly

       erroneous.

                    III. Child’s Needs Are Unlikely to Be Met
                             Without Court Coercion
[21]   Mother challenges the juvenile court’s conclusion that Child’s needs are

       unlikely to be met without court coercion. “[T]he government is permitted to

       forcibly intervene in a family’s life only if the family cannot meet a child’s needs

       without coercion[.]” Matter of E.K., 83 N.E.3d 1256, 1261 (Ind. Ct. App. 2017),

       trans. denied. “[T]he question is whether the parent[] must be coerced into

       providing or accepting necessary treatment for their child.” Id. at 1262.

[22]   Here, the evidence supports that Child needed care and treatment that Mother

       was unable or unwilling to provide or accept without the coercive intervention

       of the juvenile court. As for the care Child had not been receiving from

       Mother, Child needed tutoring services to address her educational deficiencies;

       needed services to learn how to provide for her own basic needs, including

       personal hygiene; and she needed medical treatment or therapy to address both

       her bedwetting issue and her mental health needs, none of which she had been

       receiving from Mother. Mother also needed to participate in services to address



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 12 of 14
       her substance abuse-issues and housing needs so that she could provide Child

       with a suitable environment.

[23]   There is ample evidence to support a conclusion that Mother was unable or

       unwilling to provide these services to Child without the coercive intervention of

       the juvenile court. First, Mother had not enrolled Child in school or sought

       specialized services for her educational deficiencies prior to DSC’s involvement,

       nor had she sought medical care for Child’s bedwetting or mental-health issues,

       Mother knew that Child was having bedwetting issues, acknowledging that

       Child had both a bed and a recliner to sleep on in case she wet the bed.

[24]   Mother’s refusal to acknowledge the existence of issues that clearly need to be

       addressed also supports a conclusion that she is unwilling to give Child the help

       she needs. Mother will still not admit that she has a substance-abuse problem,

       despite the several drug-related charges pending against her, testifying that it

       had been several years since she had had any issues with drug use. Mother also

       denied that any conditions in the home were unsafe for Child prior to DCS’s

       involvement, despite the ample evidence of filth, inadequate heat, and

       inadequate food. Mother’s failure to acknowledge that there is a problem

       supports a conclusion that without the coercive intervention of the juvenile

       court, she is unwilling to accept the services that she and Child need.

[25]   Moreover, there is ample evidence that Mother is unable to currently provide

       for Child’s needs without court intervention, even if she were willing. To get

       straight to the point, Mother was incarcerated at the time of the final hearing

       and may be incarcerated for a long time to come, as she is facing, inter alia, two



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 13 of 14
       pending Level 2 felony charges. While incarcerated, Mother will be unable to

       provide for even Child’s most basic needs, let alone the specialized services

       Child needs, even if she wanted to. Of course, this incarceration was only the

       latest, as Mother had been incarcerated at least ten times previously, so there is

       no guarantee that she will stay out of jail for long when she is released. Given

       the totality of the circumstances, Mother has failed to establish that the juvenile

       court’s conclusion that Child needed care or treatment that Mother was unable

       or unwilling to provide without the coercive intervention of the juvenile court is

       clearly erroneous.

[26]   We affirm the judgment of the juvenile court.

       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1375 | December 9, 2019   Page 14 of 14
