MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Dec 20 2018, 7:17 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         INDIANA DEPARTMENT OF
Marion County Public Defender Agency                     CHILD SERVICES
– Appellate Division                                     Curtis T. Hill, Jr.
Daniel G. Foote                                          Attorney General of Indiana
Indianapolis, Indiana                                    Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana
                                                         ATTORNEY FOR APPELLEE
                                                         CHILD ADVOCATES, INC.
                                                         DeDe K. Connor
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re M.F., a Child Alleged to Be                        December 20, 2018
in Need of Services,                                     Court of Appeals Case No.
                                                         18A-JC-1585
B.R. (Father),
                                                         Appeal from the Marion Superior
Appellant-Respondent,
                                                         Court, Juvenile Division
        v.                                               The Honorable Gary K. Chavers,
                                                         Judge Pro Tempore
                                                         The Honorable Jennifer J. Hubartt,
                                                         Magistrate




Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018               Page 1 of 15
      Indiana Department of Child                              Trial Court Cause No.
      Services,                                                49D09- 1606-JC-1881

      Appellee-Petitioner,

      and Child Advocates, Inc.,
      Appellee-Guardian Ad Litem.




      Mathias, Judge.


[1]   B.R. (“Father”) appeals the order of the Marion Superior Court determining

      that his minor child, M.F. (“Daughter”), is a child in need of services

      (“CHINS”). On appeal, Father presents two issues for our review, which we

      restate as: (1) whether the trial court’s CHINS determination is supported by

      sufficient evidence, and (2) whether the trial court’s dispositional order is

      inadequate.

[2]   We affirm.


                                 Facts and Procedural History
[3]   Daughter was born to J.F. (“Mother”) on May 15, 2016. At the time of the

      birth, both Mother and Daughter tested positive for marijuana and opiates.

      Mother also demonstrated an inability to properly care for the infant. The

      Indiana Department of Child Services (“DCS”) began an investigation into the

      matter.



      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 2 of 15
[4]   On June 2, 2016, DCS filed a petition alleging that Daughter was in need of

      services. Mother informed DCS that she did not know with certainty who was

      Daughter’s biological father, but she indicated that D.C., a man with whom she

      had another child, was possibly the father. DCS then filed an amended petition

      naming D.C. as a potential father. However, subsequent DNA testing indicated

      with absolute certainty that D.C. was not Daughter’s biological father.

[5]   On October 12, 2016, the trial court entered an order finding Daughter to be a

      CHINS. At this time, Mother informed DCS that Father was potentially

      Daughter’s biological father. Accordingly, on October 14, 2016, DCS filed an

      amended CHINS petition naming Father. Appellant’s App. Vol. II, pp. 92–97.

      Father did not respond, and the trial court found that Father’s whereabouts

      were then unknown. DCS moved for a default judgment.


[6]   On December 9, 2016, DCS filed an Affidavit of Diligent Inquiry, which

      indicated that Mother “last heard [Father] was in Prison” but had no other

      “information concerning [Father].” Appellant’s App. Vol II, p. 103. On

      December 13, 2016, the trial court clerk issued a Summons for Service by

      Publication and Notice of the CHINS Hearing, having been unable to locate

      Father. On January 18, 2017, the court noted that DCS had had no contact

      with Father and that a hearing for default was set for March 3, 2017.

[7]   On March 3, 2017, the trial court held a hearing regarding DCS’s request for

      default judgment against Father. The trial court found that DCS had made

      reasonable efforts to locate Father and entered an order of default against


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 3 of 15
       Father, affirming Daughter’s status as a CHINS. The trial court proceeded to

       disposition, ordering no services to Father due to his unknown whereabouts.

[8]    In a May 2017 progress report to the court, DCS noted that Father’s location

       was still unknown at that time. Additionally, DCS reported that Mother had

       not completed the court-ordered services, that she had missed forty random

       drug screens, and that her last drug screen from January 2017 was positive for

       marijuana, opiates, and benzodiazepines. DCS also noted that Daughter had

       been placed with her maternal aunt “where she [was] able to maintain family

       bonding.” Appellant’s App. Vol. II at 137. In its subsequent report in August of

       that year, DCS requested the trial court’s permission to change the permanency

       plan to adoption, noting that the maternal aunt had hired an adoption attorney

       and wanted to adopt Daughter.


[9]    In a permanency order dated September 6, 2017, the trial court changed the

       permanency plan to adoption, noting Mother’s continued lack of progress and

       Father’s unknown whereabouts. On September 18, 2017, DCS filed a petition

       to terminate both parents’ parental rights.


[10]   Shortly thereafter, DCS was able to locate Father as an inmate at the

       Branchville Correctional Facility. The trial court appointed counsel to represent




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 4 of 15
       Father, and Father filed a request for DNA paternity testing. The results of the

       DNA test indicated with certainty that Father is Daughter’s biological father.1

[11]   On February 12, 2018, Father filed a motion for relief from judgment regarding

       the trial court’s March 3, 2017 default judgment order, alleging that he was

       incarcerated at the time DCS conducted its “diligent” inquiry and should have

       been able to locate Father. The trial court granted this motion and also granted

       DCS’s subsequent motion to dismiss the petition to terminate Father’s parental

       rights.

[12]   On May 9, 2018, the trial court held an evidentiary hearing regarding

       Daughter’s status as a CHINS with regard to Father. That same day, the trial

       court entered an order adjudicating Daughter to be in need of services, finding

       in relevant part:


                  22. [Daughter] is in pre-adoptive relative care with her maternal
                  aunt and uncle.

                  23. [Father] is incarcerated at the Branchville Correctional
                  Facility due to convictions involving Burglary with a Deadly
                  Weapon, Robbery, Criminal Confinement, and Theft.

                  24. [Father] has participated in a number of rehabilitative
                  programs while incarcerated[,] and he hopes his participation
                  will lead to an early release from incarceration.




       1
           Specifically, the probability that Father is Daughter’s biological father is 99.999996 percent.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018                     Page 5 of 15
               25. [Father]’s earliest release date is currently in 2023.[2]

               26. [Father] is unable to have the child placed in his care at this
               time.

               27. [Father] is unable to provide for the child’s basic needs at
               this time due to his incarceration.

               28. [Father] is unable to provide the child with a safe and stable
               home environment due to his incarceration.

               29. [Father] is unable to provide the child with parental
               supervision due to his incarceration.

       Appellant’s App. Vol. III, p. 27–28. On June 13, 2018, the trial court held a

       dispositional hearing and entered a dispositional order. Father now appeals.


                  The CHINS Statutes and Our Standard of Review

[13]   As explained by our supreme court, Indiana Code sections 31-34-1-1 through

       31-34-1-11 specify the elements that DCS must prove in order to establish that a

       child is in need of services: (1) the child is under the age of eighteen; (2) one or

       more particular set or sets of circumstances set forth in the statute exists; and (3)

       the care, treatment, or rehabilitation needed to address those circumstances is

       unlikely to be provided or accepted without the coercive intervention of the

       court. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (citing In re N.E., 919

       N.E.2d 102, 105 (Ind. 2010)).




       2
        The Department of Correction’s Offender Locator now indicates that Father’s earliest release date is in
       November 2022. But at the time of the CHINS proceedings before the trial court, it was in 2023.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018                Page 6 of 15
[14]   In this case, DCS alleged that Daughter was in need of services under Indiana

       Code sections 31-34-1-1 and 31-34-1-10. The former section provides that a

       child is a CHINS if, before the child becomes eighteen 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.


       I.C. § 31-34-1-1. The latter section provides:

               Except as provided in sections 12 and 13 of this chapter, a child
               is a child in need of services if:


               (1) the child is born with:
                    (A) fetal alcohol syndrome;
                    (B) neonatal abstinence syndrome; or
                    (C) any amount, including a trace amount, of a controlled
                    substance, a legend drug, or a metabolite of a controlled
                    substance or legend drug in the child’s body, including the
                    child’s blood, urine, umbilical cord tissue, or meconium; and
               (2) the child needs care, treatment, or rehabilitation that:
                    (A) the child is not receiving; or
                    (B) is unlikely to be provided or accepted without the
                    coercive intervention of the court.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 7 of 15
       Ind. Code § 31-34-1-10.


[15]   [T]he purpose of a CHINS adjudication is to protect children, not punish

       parents. In re L.C., 23 N.E.3d 37, 39 (Ind. Ct. App. 2015), trans. denied (citing

       N.E., 919 N.E.2d at 106). A CHINS adjudication is not a determination of

       parental fault but is simply a determination that a child is in need of services

       and is unlikely to receive those services without the court’s intervention. Id.

       (citing N.E., 919 N.E.2d at 105). Because CHINS proceedings are civil in

       nature, DCS must prove that a child is a CHINS as defined by the relevant

       statutes only by a preponderance of the evidence. Id.


[16]   “Unlike CHINS dispositional decrees, no statute expressly requires formal

       findings in a CHINS fact-finding order[.]” In re S.D., 2 N.E.3d 1283, 1287 (Ind.

       2014) (citing Ind. Code § 31-34-19-10). Here, the trial court entered findings of

       fact and conclusions of law in its fact-finding order, but Father does not

       challenge the veracity of any of the court’s factual findings. The failure to

       challenge findings by the trial court results in waiver of any argument that the

       findings are clearly erroneous. In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App.

       2007), trans. denied. If a party fails to challenge the trial court’s factual findings,

       we will accept them as true. McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind.

       Ct. App. 1997).

[17]   On appeal, we neither reweigh the evidence nor judge the credibility of the

       witnesses. B.R., 875 N.E.2d at 372. Instead, we consider only the evidence that

       supports the trial court’s decision and reasonable inferences drawn therefrom.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 8 of 15
       Id. We reverse only upon a showing that the trial court’s decision was clearly

       erroneous. Id. at 373.


          I. DCS Presented Sufficient Evidence to Support the Trial
                      Court’s CHINS Determination
[18]   Father first claims that DCS presented no evidence to show that Daughter’s

       physical or mental condition was seriously impaired or endangered as a result

       of Father’s inability, refusal, or neglect to provide food, clothing, shelter,

       medical care, education, or supervision, as required by Indiana Code section

       31-34-1-1(1). Father focuses first on the requirement that DCS prove that

       Daughter’s physical or mental condition was “seriously impaired” or “seriously

       endangered,” arguing that no such evidence was presented. We disagree.

[19]   The evidence favoring the trial court’s decision shows that Father is currently

       incarcerated. Moreover, there was evidence that his earliest possible release

       date was not until 2023. In fact, at the time of the CHINS hearings, both

       Mother and Father were incarcerated. As noted by the State, it appears that

       Daughter would be homeless but for foster care. It is obvious that Father is not

       able to provide the necessities of life for Daughter. Thus, the trial court did not

       clearly err in determining that Daughter’s physical or mental condition was

       seriously impaired.


[20]   Father also argues that there was no evidence that Daughter needed care,

       treatment, or rehabilitation that she was not already receiving at the time of the

       CHINS hearing. He appears to argue that Daughter is not a CHINS because


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 9 of 15
       she is being adequately cared for in foster care with her maternal aunt.

       However, this argument overlooks the fact that the only reason Daughter is

       being well cared for in foster care is itself a result of the CHINS proceedings.


[21]   Father also contends that, “in the absence of any recommendations for care,

       treatment or rehabilitation, and with his daughter placed in the care of a

       relative, it is difficult to say why coercive intervention of the court would be

       required[.]” Appellant’s Br. at 16. Again, this overlooks the fact that the very

       reason Daughter is in foster care is that DCS intervened because of Father’s

       inability to care for his child due to his incarceration. In other words, Daughter

       is receiving services, i.e. foster care, because of Father’s inability to care for her

       himself. The fact that the foster care is adequate to care for Daughter is not

       evidence that she is not in need of services; it is the result of the fact that she is in

       need of services.

[22]   Accordingly, the trial court did not clearly err in determining that Daughter’s

       physical or mental condition was seriously impaired or endangered by Father’s

       inability, due to his incarceration, to supply her with the necessary food,

       clothing, shelter, medical care, education, or supervision, and that Daughter

       needs care that she was not receiving and was unlikely to be provided without

       the intervention of the court, i.e., foster care.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 10 of 15
                    II. The Dispositional Order is Not Inadequate

[23]   Father also argues that the trial court’s dispositional order is inadequate in that

       it does not meet certain statutory requirements. Father notes that, pursuant to

       Indiana Code section 31-34-19-10:

               (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.

                   (6) Whether the child is a dual status child under IC 31-41.

               (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.



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 11 of 15
[24]   To the extent that B.R. claims that the trial court failed to enter written findings

       and conclusions at all, we disagree. The trial court’s dispositional order is not

       particularly long or detailed, but it does, as permitted by section 31-34-19-10(b),

       incorporate by reference the predispositional report, which was much more

       detailed and comprehensive and included the family history, a list of

       Daughter’s needs, a list of those consulted regarding Daughter’s care, options

       for her placement, and a parental participation recommendation. See McBride v.

       Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 196 (Ind. Ct. App. 2003)

       (holding that trial court’s dispositional order met statutory requirements where

       it incorporated by reference the predispositional report and review report that

       contained several pages of family history, background, placement options for

       the children, and OFC’s recommendations).


[25]   Father also argues that the trial court’s dispositional order fails to address the

       need for his participation in Daughter’s care. See I.C. § 31-34-19-10(a)(2). To

       the contrary, the trial court’s dispositional order, and the pre-dispositional

       report incorporated therein, adequately address the issue of Father’s

       participation in Daughter’s care. First, the order notes that Father is

       incarcerated; thus, he obviously cannot directly participate in Daughter’s care.

       Moreover, the decree provides that Father may have parenting time, subject to

       the approval of the service providers. Father was also ordered to contact DCS

       within seventy-two hours of his release from incarceration. We conclude that

       this sufficiently addresses the requirements of subsection 31-34-19-10(a)(2).




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 12 of 15
[26]   Father next argues that the dispositional order does not address the efforts made

       to promote reunification of Father and Daughter. See I.C. § 31-34-19-10(a)(3).

       Although the trial court’s dispositional order does not directly address the

       reunification efforts, the facts contained in the order demonstrate that the trial

       court considered such efforts. Indeed, the court determined that DCS offered

       reasonable services for the purposes of reuniting the family, obviously to no

       avail. Father is incarcerated, with an earliest possible release date of November

       2022. Thus, Father is incapable of taking care of Daughter, and reunification is

       currently impossible. Thus, DCS was not required to offer reunification services

       to Father. See Castro v. Ind. Office of Family & Children, 842 N.E.2d 367, 377 (Ind.

       Ct. App. 2006) (holding that the State is not required to offer a parent services

       aimed at reunification with the child when the parent is incarcerated), trans.

       denied. We do not think that DCS is required to continue to allow Daughter to

       linger in foster care for another five years until Father is released from

       incarceration. As this court has noted before, those who engage in criminal

       behavior run the risk of being denied the opportunity to develop positive and

       meaningful relationships with their children. In re E.P., 20 N.E.3d 915, 922

       (Ind. Ct. App. 2014), trans. denied.


[27]   Father also complains that the dispositional decree does not provide for services

       to be offered to him, other than to report to DCS when he is released from

       incarceration. However, the trial court noted that Father was participating in

       services offered by the Department of Correction. Moreover, it is well settled

       that DCS is not required to offer services to a parent while the parent is


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 13 of 15
       incarcerated. Rowlett v. Vanderburgh Cty. Office of Family & Children, 841 N.E.2d

       615, 622 (Ind. Ct. App. 2006), trans. denied; see also In re H.L., 915 N.E.2d 145,

       148 (Ind. Ct. App. 2009) (holding that father was not denied due process of law

       where DCS was unable to offer services to father or evaluate him for services

       due to his incarceration). In short, Father’s arguments regarding the adequacy

       of the trial court’s dispositional order are unavailing.

[28]   Interspersed with his arguments regarding the adequacy of the dispositional

       order, Father also complains that DCS failed to make a truly diligent search to

       locate him, thereby leaving him “completely out of the picture between October

       of 2017 and September of 2018.” Appellant’s Br. at 18. To be sure, it appears

       that DCS should have been able to locate Father sooner, as a quick search of

       the Offender Locator service offered by the Department of Correction on the

       Internet would have indicated that Father was incarcerated.3 But Father’s

       complaints overlook the fact that, after Father was located, the trial court

       granted his motion to set aside its earlier default judgment against him and

       dismissed the petition to terminate parental rights.4 Moreover, it appears that

       Father was incarcerated during this period, and he does not claim otherwise.

       Thus, even if DCS had been able to locate him during the period he now claims




       3
           See https://www.in.gov/apps/indcorrection/ofs/ofs.
       4
        In addition, Father admitted that he thought he was Daughter’s biological father. Thus, if Father wanted to
       be a part of Daughter’s life from the outset, he should have registered with the putative father registry.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018              Page 14 of 15
       he was “out of the picture,” he would still have been unable to actively

       participate in Daughter’s care.


                                                 Conclusion

[29]   The trial court did not clearly err in determining that Daughter was a child in

       need of services, as the DCS presented sufficient evidence that Daughter’s

       physical or mental condition was seriously impaired or endangered by Father’s

       inability, due to his incarceration, to provide for Daughter’s needs. We also find

       no merit in Father’s claims that the trial court’s dispositional order failed to

       comply with the applicable statutory requirements. Accordingly, we affirm the

       order of the trial court.

[30]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1585 | December 20, 2018   Page 15 of 15
