Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                           FILED
regarded as precedent or cited before                         Sep 11 2012, 9:28 am
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                                                                   of the supreme court,
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ATTORNEY FOR APPELLANTS:                           ATTORNEYS FOR APPELLEE:

BENJAMIN D. R. VANDERPOOL                          TODD A. WHITEHURST
Vanderpool Law Firm, P.C.                          DCS, Wabash County Office
Warsaw, Indiana                                    Wabash, Indiana

                                                   ROBERT J. HENKE
                                                   DCS Central Administration
                                                   Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA
IN THE MATTER OF A MINOR CHILD IN                  )
NEED OF SERVICES,                                  )
T.C., Minor Child,                                 )
                                                   )
M.C., Mother,                                      )
                                                   )
       Appellants-Respondents,                     )
                                                   )
                vs.                                )        No. 85A02-1202-JC-139
                                                   )
INDIANA DEPARTMENT OF CHILD                        )
SERVICES,                                          )
                                                   )
       Appellee-Petitioner.                        )

                      APPEAL FROM THE WABASH CIRCUIT COURT
                        The Honorable Robert R. McCallen, III, Judge
                              Cause No. 85C01-1111-JC-52

                                       September 11, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
       M.C. (Mother) appeals the adjudication of T.C. as a child in need of services

(CHINS). She presents three issues for our review:

       1.     Whether the juvenile court’s dispositional plan complied with Ind. Code § 31-

              34-19-10;

       2.     Whether the State presented sufficient evidence T.C. was a CHINS; and

       3.     Whether the trial court’s disposition order complies with the requirements of

              Ind. Code § 31-34-19-6.

We affirm.

                       FACTS AND PROCEDURAL HISTORY

       During the fall of 2011, T.C., then ten years old, was absent from school for twenty-

five full days and three half days. T.C.’s school contacted Mother regarding T.C.’s absences

on at least two occasions, including a letter on October 11 expressing concern about T.C.’s

lack of attendance. In October 2011, the Department of Child Services (DCS) intervened and

offered Mother services to assist in getting T.C. to school. Nevertheless, T.C.’s absences

continued.

       On November 1, DCS filed a petition alleging T.C. was a CHINS based on her poor

attendance at school and incomplete grades in some classes. The juvenile court adjudicated

T.C. a CHINS and ordered a pre-dispositional report. On January 6, 2012, the juvenile court

ordered T.C. to remain in foster care, where she had been attending school and receiving

good grades, and required Mother to complete a series of services, including participation in

supervised visits with T.C. and family counseling.

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                             DISCUSSION AND DECISION

       1.     The Juvenile Court’s Findings and Conclusions

       Mother argues the dispositional order does not comply with Ind. Code § 31-34-19-10,

which provides:

       (a) The juvenile court shall accompany the court’s dispositional decree with
       written findings and conclusions upon the record concerning the following:
              (1) The needs of the child for care, treatment, rehabilitation, or
              placement.
              (2) The need for participation by the parent, guardian, or custodian in
              the plan of care for the child.
              (3) Efforts made, if the child is a child in need of services, to:
                     (A) prevent the child’s removal from; or
                     (B) reunite the child with;
              the child’s parent, guardian, or custodian in accordance with federal
              law.
              (4) Family services that were offered and provided to:
                     (A) a child in need of services; or
                     (B) the child’s parent, guardian, or custodian;
              in accordance with federal law.
              (5) The court’s reasons for the disposition.
       (b) The juvenile court may incorporate a finding or conclusion from a
       predispositional report as a written finding or conclusion upon the record in the
       court’s dispositional decree.

The order complied with the statute.

       The order indicates T.C. was removed from Mother’s care due to allegations of

educational neglect, and Mother was offered services prior to T.C.’s removal to no avail. It

outlined the services T.C. and Mother were to complete as part of the CHINS adjudication.

Its earlier order declaring T.C. a CHINS includes specific details about her removal and

continued foster care. The dispositional order complies with Ind. Code § 31-34-19-10. See

In re R.P., 949 N.E.2d 395, 404 (Ind. Ct. App. 2011) (“the trial court’s Dispositional Order is

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sparse, but it is apparent that the trial court did consider the elements required by I.C. § 31-

34-19-10”).

2.     Sufficiency of the Evidence

       Mother asserts DCS did not present sufficient evidence T.C. was a CHINS. A CHINS

proceeding is civil in nature, so DCS 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). The CHINS petition in the instant case was filed pursuant to Ind. Code § 31-34-1-1,

which states:

       Sec. 1. 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.

A CHINS adjudication “focuses on the condition of the child,” and not the culpability of the

parent. In re N.E., 919 N.E.2d at 105. The purpose of finding a child to be a CHINS is to

provide proper services for the benefit of the child, not to punish the parent. Id. at 106.

       When a juvenile court enters findings of fact and conclusions of law in a CHINS

decision, we apply a two-tiered standard of review. Parmeter v. Cass County DCS, 878

N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first consider whether the evidence

supports the findings and then whether the findings support the judgment. Id. We may not

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set aside the findings or judgment unless they are clearly erroneous. 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 regard to the juvenile court’s ability to assess witness credibility and do not reweigh the

evidence; we instead consider the evidence most favorable to the judgment with all

reasonable inferences drawn in favor of the judgment. Id. We defer substantially to findings

of fact, but not to conclusions of law. Id.

              a.      Serious Impairment of T.C.’s Mental or Physical Condition

       Mother argues DCS did not prove T.C.’s physical or mental condition was “seriously”

impaired or endangered as required by Ind. Code § 31-34-1-1. Mother urges us to review

whether DCS proved elements of Class D felony neglect of a dependent, which Mother

argues would demonstrate DCS did not present sufficient evidence to prove T.C. was a

CHINS. Mother did not present this argument during the CHINS adjudication hearings, and

we therefore decline to address it on appeal. See City of Evansville v. Braun, 677 N.E.2d

597, 600 (Ind. Ct. App. 1997) (failure to raise argument at trial waives the issue for appellate

consideration), trans. denied.

              b.      T.C.’s Condition a Result of the Inability, Refusal, or Neglect of Mother

       Mother argues DCS did not prove that “T.C.’s physical or mental condition was

seriously impaired or endangered by anything her parent, guardian, or custodian has failed to

do.” (Br. of Appellant at 17.) The juvenile court found:

       Between August 22, 2011 and November 29, 2011, the child missed at least 25
       days and 3 half days. Approximately 15 of those days Mother offered a myriad
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       of excuses including illness, missed bus, moving and doctor appointments. On
       at least one occasion following Mother’s report that her child was ill, a Family
       Case Manager from DCS went to the residence. The child was dressed and
       appeared not to be ill.
       On two (2) separate occasions, the Mother was sent a letter from the school
       expressing concern about the child’s absences. In a letter dated October 11,
       2011, the school requested a doctor’s statement for future illness related
       absences. None were thereafter provided although the absences continued.
                                            ***
       As a result of [the investigation by DCS] Mother was advised of county
       transportation options and referred to Community Partners. Community
       Partners offers a variety of services to families at no cost and coordinates
       assistance to families in need. Mother met with a representative of
       Community Partners on at least one occasion, however, the child’s absences
       continued. During the second week in October, 2011, [Family Case Manager]
       Reynolds, along with a school representative, went to Mother’s home to meet
       with Mother about her child’s absences. That meeting ended when Mother
       cursed at Ms. Reynolds.
                                            ***
       Clearly, Mother failed to address the child’s absences following contacts by
       both the school and the DCS.

(App. at 6-7.) Mother points to other factors that could have affected T.C.’s grades in school

and asserts the school had an arbitrary method of determining whether an absence was

unexcused. Mother’s arguments are invitations for us to reweigh the evidence and judge the

credibility of witnesses at trial, which we cannot do. See Parmeter, 878 N.E.2d at 450

(appellate court may not reweigh evidence or judge credibility of witnesses).

              c.     Coercive Intervention of the Court Required

       Mother argues DCS did not present evidence T.C. was unlikely to receive treatment or

rehabilitation without the coercive intervention of the court. Mother characterizes the

evidence offered as “minimal,” (Br. of Appellant at 19), and as indicating only that Mother

“failed to cooperate with the requests of DCS when they [sic] advised her of county

                                              6
transportation options and advised of Community Partners.” (Id.) Mother asserts the facts of

the instant case are similar to those of In re T.H., 856 N.E.2d 1247 (Ind. Ct. App. 2006), in

which we held “[r]efusal to cooperate with the government is not, by itself, a basis for the

government to interfere with parental rights and the integrity of the family unit.” Id. at 1251.

T.H. does not control.

         The children in In re T.H. were removed based on an anonymous report that alleged

Father was abusing the children and selling drugs and guns out of the house he shared with

his children. On investigation of Father’s residence, DCS determined the home to be

appropriate, with the exception of one unsecured gun on the top of the refrigerator. Based on

the discovery of the gun, DCS asked Father to sign a Service Referral Agreement (SRA), and

he did so. Father eventually disposed of the gun, but a CHINS proceeding was initiated

because he did not complete the services required by the SRA. In holding the trial court

erred in adjudicating the children as CHINS, we noted despite Father’s failure to complete

services, “there is no evidence that he actually needed them” and, with the exception of the

unsecured gun issue[,] which had been remedied by the time the CHINS proceeding was

initiated, “the only evidence is that [Father] is an acceptable parent to his children.” (Id. at

1251.)

         By contrast, in the instant case Mother did not participate voluntarily in services, and

the evidence suggests she was reluctant to do so even when ordered by the court. DCS

presented evidence T.C.’s school absences were affecting her grades. Mother was informed

of transportation services to help her ensure T.C. attended school, but she chose not to take

                                                7
advantage of those services. Once a CHINS action was commenced and T.C. was placed in

foster care, T.C.’s attendance and grades improved. DCS presented evidence that without

court intervention, T.C. would continue to miss school, and, unlike the Father in In re: T.H.,

Mother’s failure to complete services was not the sole reason for adjudicating T.C. as a

CHINS.

       3.       Dispositional Plan

       Mother claims the dispositional decree does not comply with Ind. Code § 31-34-19-6,

which states:

       If consistent with the safety of the community and the best interest of the child,
       the juvenile court shall enter a dispositional decree that:
       (1) is:
               (A) in the least restrictive (most family like) and most appropriate
               setting available; and
               (B) close to the parents’ home, consistent with the best interest and
               special needs of the child;
       (2) least interferes with family autonomy;
       (3) is least disruptive of family life;
       (4) imposes the least restraint on the freedom of the child and the child’s
       parent, guardian, or custodian; and
       (5) provides a reasonable opportunity for participation by the child’s parent,
       guardian, or custodian.

The juvenile court ordered, “1. The child shall continue to be a ward of Wabash County

Department of [C]hild [S]ervices and continue in foster placement. 2. The mother shall

consistently participate in all scheduled supervised visitations with the child at White’s

Family Services.” (App. at 8.) Mother argues that order is not the “least restrictive” or

“family like” as required by Ind. Code § 31-34-19-6.

       There was evidence Mother was given an opportunity to correct T.C.’s absenteeism

                                               8
while T.C. still lived with her, but she did not. Since T.C. has been in foster care, her

attendance and grades have improved dramatically. As the evidence supports the juvenile

court’s findings of fact and the findings of fact support its conclusions of law, we cannot say

the trial court erred in determining T.C.’s placement arrangement. See Parmeter, 878 N.E.2d

at 450 (appellate court will not reweigh evidence and will overturn the juvenile court’s

decision only if it clearly erroneous).

                                        CONCLUSION

       DCS presented sufficient evidence to prove T.C. was a CHINS. The juvenile court

did not err when it ordered T.C. to live in foster care and Mother to participate in supervised

visits. Finally, the Court’s findings comported with Ind. Code § 31-34-19-10. Accordingly,

we affirm the juvenile court’s order.

       Affirmed.

KIRSCH, J., and NAJAM, J., concur.




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