MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     May 16 2016, 6:00 am

regarded as precedent or cited before any                                      CLERK
                                                                           Indiana Supreme Court
court except for the purpose of establishing                                  Court of Appeals
                                                                                and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan E. Schultz                                         Gregory F. Zoeller
Corydon, Indiana                                         Attorney General

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the matter of Se.G. and So.G.:                        May 16, 2016
                                                         Court of Appeals Case No.
                                                         31A01-1509-JC-1476
R.N. (Mother),
                                                         Appeal from the Harrison Circuit
Appellant-Respondent,                                    Court
                                                         The Honorable John T. Evans,
        v.
                                                         Judge
                                                         The Honorable Lisa Garcia Reger,
The Indiana Department of                                Juvenile Referee
Child Services,
                                                         Trial Court Cause No.
Appellee-Petitioner.                                     31C01-1504-JC-28
                                                         31C01-1504-JC-29



Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016                Page 1 of 11
                                          Case Summary
[1]   R.N. (Mother) and K.G. (Father) divorced shortly after K.G.’s father molested

      one of their children in the presence of Mother. As part of the divorce, Mother

      agreed that Father would have sole custody of the children and that she would

      not have any parenting time. The children lived with Father and his new wife.

      Four years later, the children were adjudicated children in need of services

      (CHINS) after Father murdered their stepmother and then killed himself while

      the children were home. The trial court ordered that Mother, who had not seen

      her children in four years, could not start visiting them until recommended by a

      psychologist.

[2]   The evidence is sufficient to support the CHINS determination—in particular,

      the court’s conclusion that treatment is unlikely to be provided or accepted

      without the coercive intervention of the court. Mother previously failed to

      intervene when her child was being molested by his grandfather and she has not

      had contact with the children in the four years since that allegation was

      substantiated by the Indiana Department of Child Services (DCS). Further,

      although the dispositional order delays visitation until Mother and the children

      complete additional therapy, we find that the order “provides a reasonable

      opportunity for participation by the child’s parent” according to Indiana Code

      section 31-34-19-6. We therefore affirm the CHINS adjudication and

      dispositional order.




      Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016   Page 2 of 11
                            Facts and Procedural History
[3]   Mother and Father had two sons, So.G., born in December 2007, and Se.G.,

      born in February 2009. In September 2011, while Mother and Father were still

      married and living together, DCS investigated an allegation that So.G.’s

      paternal grandfather molested him while Mother was in the room. DCS

      Family Case Manager (FCM) Channell Hood investigated the allegation.

      Shortly thereafter, Father agreed to a safety plan that required him to ensure

      that Mother had no unsupervised contact with So.G. unless advance notice was

      given to FCM Hood. During the investigation, Mother admitted that she

      observed the sexual abuse. According to FCM Hood, Mother said “she didn’t

      know what to do. I believe she said she was numb.” Tr. p. 60. In December

      2011, DCS substantiated the child-molesting allegation against the grandfather

      and substantiated the allegation of “environment life[/]health endangering”

      against Mother. Id. at 64.


[4]   Four months later, Mother and Father got divorced. As part of the divorce,

      Mother agreed that Father would have sole custody of the children and that she

      would not have any parenting time. As a result, Mother has not had contact

      with the children since 2011. She remarried and currently lives in Louisiana

      with her husband and his daughter.

[5]   Father also remarried, and the two boys lived with Father and his wife until

      April 25, 2015. That day, Father shot and killed his wife before turning the gun

      on himself. Four children were in the home during the murder-suicide,


      Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016   Page 3 of 11
      including So.G. and Se.G. The two boys were in a different part of the house,

      so they did not see the shooting. However, after hearing the gunshots, the boys

      went to investigate and they discovered their stepmother’s and Father’s bodies.


[6]   The police reported the shooting to DCS, and FCM Melinda Coleman came to

      the house. She was told that Mother’s parental rights had been terminated and

      that Mother was living in either Texas or Louisiana. FCM Coleman placed the

      children with Father’s half-brother and his wife. Later that night, FCM

      Coleman contacted Mother and learned that her parental rights had not been

      terminated after all and that she was living in Louisiana.


[7]   DCS filed a CHINS petition two days after the murder-suicide, and a fact-

      finding hearing was conducted before a juvenile referee eight weeks later. At

      the hearing, the children’s therapist testified that “present contact between the

      children and [Mother] will absolutely re-traumatize those kids every single time

      [the contact] happens. And I’m not sure we will get through trauma treatment

      if we are retriggering them constantly.” Id. at 93. FCM Coleman testified that

      the children were not placed with Mother after DCS received her contact

      information for several reasons: Mother had not seen the children in four years,

      DCS substantiated an allegation against Mother in 2011, the therapist

      recommended against contact with Mother, Mother lives in Louisiana, and

      DCS is uncertain about Mother’s mental capacity to care for the children.




      Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016   Page 4 of 11
[8]   Following the fact-finding hearing, the referee submitted a recommended order

      finding the children to be CHINS, and the trial court signed the order as

      written. The order includes the following findings of fact:

              [The children] witnessed the murder of their step-mother and
              suicide of their father and are in need of counseling and
              treatment to address the trauma therefrom.

              [So.G.] has been sexually abused by a family member in the
              presence of Mother and [Se.G.]. . . . Both children are in need of
              counseling to address this trauma.

              The mother has not seen her children for a period of
              approximately four years and has taken no steps to amend or
              revise the court order which suspends her right to parenting time.
              The children are afraid of their mother and are in need of
              counseling and treatment to address the four year absence of their
              mother. The mother neglected to seek counseling for her
              children or herself during that four year period.

      Appellant’s App. p. 12. The court, then, concluded that:

              The children’s mental health is seriously endangered due to the
              acts and omissions of the parents of the children.

                                                   *****

              The children need care, treatment, or rehabilitation that they are
              not receiving; and are unlikely to be provided or accepted
              without the coercive intervention of the court.

      Id.


[9]   At the dispositional hearing, the children’s therapist again testified that contact

      with Mother would be harmful. The therapist recommended that Mother enter

      into therapy in Louisiana, and once Mother’s therapist had sufficient

      Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016   Page 5 of 11
       information about Mother’s condition, the two therapists could work together

       to develop a plan for reestablishing contact between Mother and the children.

       The referee submitted her recommendation, and the court ordered that Mother

       complete a psychological evaluation and any recommended treatment, and that

       “DCS shall arrange for a licensed psychologist to complete an independent

       review of possible visitation between the mother and child[ren] and make a

       separate recommendation. Visitation will begin once recommended.”

       Appellant’s App. p. 18, 23. Mother now appeals both the CHINS adjudication

       and the dispositional order.



                                    Discussion and Decision
[10]   Mother makes two arguments: there is insufficient evidence to conclude that the

       necessary treatment for the children is unlikely to be provided or accepted

       without the coercive intervention of the court, and that the dispositional order

       impermissibly allows a psychologist to decide when visitation should begin.1




       1
         Mother also argues that the referee did not submit sufficient findings to permit child hearsay into evidence
       during the fact-finding hearing. See Ind. Code § 31-31-3-6 (requiring juvenile referees to “submit findings and
       recommendations in writing to the juvenile court, which shall enter such order as it considers proper”).
       However, the child hearsay addressed only the questions of whether the children were endangered and in
       need of treatment. On appeal, Mother agrees that the children have been endangered and require treatment.
       There is also sufficient evidence without the child hearsay to substantiate Mother’s role in the 2011 molesting
       of So.G. by his grandfather. Therefore, the admission of the hearsay, if it was in error, would be harmless
       error. Accordingly, we do not address Mother’s arguments regarding the admission of the child hearsay.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016               Page 6 of 11
                                     I. Insufficient Evidence
[11]   Mother contends that there is insufficient evidence to support the CHINS

       determination. In reviewing a trial court’s determination that a child is in need

       of services, we neither reweigh the evidence nor judge the credibility of the

       witnesses. In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). Instead, we consider

       only the evidence that supports the trial court’s decision and reasonable

       inferences drawn therefrom. Id. at 1287.


[12]   Here, the trial court adopted the findings and conclusions recommended by the

       juvenile referee according to Indiana Code section 31-31-3-6. When the trial

       court enters findings of fact and conclusions, we apply a two-tiered standard of

       review. In re A.C., 905 N.E.2d 456, 461 (Ind. Ct. App. 2009). We first consider

       whether the evidence supports the factual findings and then whether the

       findings support the judgment. 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.

[13]   In this case, the CHINS petition was filed pursuant to Indiana Code section 31-

       34-1-1, which 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 necessary food, clothing, shelter, medical care,
               education, or supervision; and

       Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016   Page 7 of 11
               (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.

[14]   Mother agrees that the children have been endangered and require treatment.

       She only disputes “the court’s conclusion, without factual recitation, that the

       care, treatment, or rehabilitation needed by the children was unlikely to be

       provided or accepted without the coercive intervention by the State.”

       Appellant’s Br. p. 23. However, both the factual recitation and the record

       support this conclusion. First, the court found that “So.G. has been sexually

       abused by a family member in the presence of Mother and Se.G.” Appellant’s

       App. p. 12. This finding is supported by testimony that DCS substantiated an

       allegation of “environment life[/]health endangering” against Mother in 2011

       because she did not respond appropriately when she saw her son being

       molested by her father-in-law. Tr. p. 64. Second, the court found that Mother,

       who had not seen her children in four years, did not take any steps during that

       time to amend or revise the court order that suspended her right to parenting

       time. It was not clearly erroneous for the court to infer that its intervention will

       be required based on Mother’s past inability to intervene on behalf of her

       children. Moreover, the children’s therapist testified that contact with Mother

       right now “would be traumatic and devastating” and would impede the

       children’s recovery. Tr. p. 98-99.




       Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016   Page 8 of 11
[15]   Nevertheless, Mother argues that this case is factually similar to D.B. v. Indiana

       Department of Child Services, 43 N.E.3d 599 (Ind. Ct. App. 2015), trans. denied. In

       D.B., the father lived in another state and had not seen his two-year-old

       daughter in sixteen months. DCS petitioned to have the child declared a

       CHINS when mother was murdered. This Court determined that there was

       insufficient evidence to overcome the presumption that the father was a fit and

       capable parent. Id. at 606. This case is easily distinguishable from D.B. because

       Mother has a substantiated allegation of “environment life[/]health

       endangering” from 2011, which was the last time she had contact with the

       children.


[16]   Based on the findings and the record in this case, it was not clearly erroneous

       for the court to conclude that coercive intervention is required, to ensure

       appropriate treatment for the children.


                                      II. Dispositional Order
[17]   Mother also contends that the court erred when it ordered that visitation would

       not start until recommended by a psychologist. Mother argues that under

       Indiana Code section 31-34-19-6, it is impermissible for a court to allow a

       psychologist to determine when visitation will begin.

[18]   Section 31-34-19-6 provides, in relevant part:

               If consistent with the safety of the community and the best
               interest of the child, the juvenile court shall enter a dispositional
               decree that:
                                              *****
       Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016   Page 9 of 11
               (5) provides a reasonable opportunity for participation by the
               child’s parent, guardian, or custodian.


[19]   In this case, the court did enter a dispositional order that will ultimately give

       Mother a “reasonable opportunity” to participate in the care of her children.

       The children’s therapist testified at the fact-finding and dispositional hearings

       that contact with Mother would hinder the children’s treatment and that she did

       not recommend it at that time. The court, therefore, could have simply ordered

       no visitation. But the therapist also testified that visitation could be appropriate

       after Mother begins therapy and Mother’s and the children’s therapists can

       jointly consider when and how visitation should be introduced. The court

       crafted a dispositional order reflecting the therapist’s recommendation for

       achieving future visitation. The order also permits visitation to begin as soon as

       it is recommended by a psychologist, without requiring an additional court

       order. The dispositional order is well supported by the testimony and

       recommendation of the children’s therapist, and it provides a reasonable

       opportunity for Mother’s participation in light of the children’s present

       therapeutic needs.

[20]   Mother further argues that “absent specific directions of the court to commence

       visitation between [Mother] and her children, there is a risk that there will be no

       progress toward reunification[.]” Appellant’s Br. p. 29. This risk is addressed

       by the periodic case review. Indiana Code section 31-34-21-2 requires the court

       to conduct a formal hearing at least every six months to review the case of each

       CHINS under the supervision of DCS. In addition, Indiana Code section 31-

       Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016   Page 10 of 11
       34-23-1 provides that the court may amend the dispositional order on its own

       motion or the motion of a parent, among others. Sections 31-34-21-2 and 31-

       34-23-1, taken together, ensure that the court will continue to oversee progress

       on the dispositional order, Mother will have an ongoing opportunity to present

       evidence regarding visitation, and the court may intervene if necessary.

[21]   The dispositional order is in the best interest of the children, and the order

       provides Mother with a reasonable opportunity to participate. We, therefore,

       find no error.

[22]   Affirmed.


       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 31A01-1509-JC-1476 | May 16, 2016   Page 11 of 11
