MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Mar 28 2017, 10:17 am

this Memorandum Decision shall not be                                        CLERK
                                                                         Indiana Supreme Court
regarded as precedent or cited before any                                   Court of Appeals
                                                                              and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James A. Edgar                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Marjorie Newell
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of K.D. and J.T.                           March 28, 2017
(Minor Children),                                        Court of Appeals Case No.
                                                         49A02-1610-JC-2353
And
                                                         Appeal from the Marion Superior
J.S. (Mother),                                           Court
Appellant-Respondent,                                    The Honorable Marilyn Moores,
                                                         Judge
        v.
                                                         The Honorable Jennifer Hubartt,
                                                         Magistrate
Marion County Department of
Child Services,                                          Trial Court Cause No.
                                                         49D09-1607-JC-2365 & 49D09-
Appellee-Petitioner,                                     1607-JC-2366

And

Child Advocates, Inc.,




Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2353 | March 28, 2017            Page 1 of 10
      Appellee-Guardian ad Litem.




      Riley, Judge.


                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, J.S. (Mother), appeals the trial court’s Order

      adjudicating her minor children, K.D. and J.T. (collectively, Children), as

      Children in Need of Services (CHINS).


[2]   We affirm.


                                                    ISSUE
[3]   Mother presents us with one issue on appeal, which we restate as: Whether

      there was sufficient evidence to support the trial court’s determination of the

      Children as CHINS.


                      FACTS AND PROCEDURAL HISTORY
[4]   Mother and Kevin Davidson (Davidson) are the biological parents of K.D.,

      born on July 5, 2007. Mother and Davidson were married, but have since

      instituted divorce proceedings. Mother and Robert Terhune (Terhune) are the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2353 | March 28, 2017   Page 2 of 10
      biological parents of J.T., born January on 12, 2012. Terhune established

      paternity over J.T. 1


[5]   On June 20, 2016, the Indiana Department of Child Services (DCS) received a

      report alleging that K.D. and J.T. had problems with lice and lacked a stable

      home. The following day, DCS family case manager Kwanza Johnson (FCM

      Johnson) visited the address listed on the report to assess the allegations. At the

      address listed, an elderly woman, who later was identified as Mother’s aunt,

      met FCM Johnson on the porch. She claimed not to know Mother.

      Eventually, FCM Johnson was able to contact Mother by phone. Mother

      explained that the address listed was correct but that, at the time, the Children

      were staying with their respective fathers. FCM Johnson made three attempts

      to visit Mother’s home and spoke with her eleven times by phone. Despite

      numerous requests to visit the residence, FCM Johnson was not able to conduct

      an assessment because there was always “a reason as to why [Mother] could

      not meet.” (Transcript p. 17).


[6]   FCM Johnson visited Terhune’s residence and spoke with Terhune and J.T.

      Terhune explained that he had concerns about J.T.’s hygiene as he was dirty a

      lot and “also very hungry.” (Tr. p. 17). J.T. keeps his hair intentionally short

      because he has had lice numerous times over the past year. When meeting with

      Davidson, FCM Johnson learned that K.D. also had recurring lice infestations.



      1
       Neither father participates in this appeal; however, facts with respect to them will be included when
      necessary for our decision.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2353 | March 28, 2017             Page 3 of 10
      Davidson used a medicated treatment twice monthly to treat K.D.’s hair.

      Davidson also told her that when residing with Mother the Children sleep on

      the couch and on the floor.


[7]   On July 14, 2016, DCS filed a CHINS petition, claiming that Mother had failed

      to provide the Children with a safe, stable, and appropriate home environment.

      The specific allegations included that since February 2016, K.D. had been to

      the hospital three times to have severe head lice treated. K.D’s scalp was

      bleeding and black in color. Both Children also were alleged to have ringworm

      and poor hygiene. K.D. “is so dirty that when he was washed, you could see

      the dirt come off in the bottom of the tub. [] K.D. does not have a tooth brush.”

      (Appellant’s App. Vol. II, pp. 37-38). “J.T. is often dirty like he has not bathed

      in days and cries because he is so hungry.” (Appellant’s App. Vol. II, p. 38).

      Both Children indicated that they did not bathe at Mother’s home, nor were

      their clothes washed. J.T. also expressed that he did not feel safe at Mother’s

      home because her boyfriend “grabs him and throws him around.” (Appellant’s

      App. Vol. II, p. 40). The petition also alleged that Mother lacks stability and

      has moved at least “21 times” in the last six years. (Appellant’s App. Vol II, p.

      38). That same day, the trial court conducted the initial hearing on DCS’s

      petition and granted DCS wardship over the Children. The court removed the

      Children from Mother’s care, authorized in-home placement with their

      respective fathers, and granted Mother supervised parenting time.


[8]   Later that same month, the case was assigned to DCS family case manager

      Crystal Johnson [FCM Crystal]. FCM Crystal attempted to meet with Mother

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2353 | March 28, 2017   Page 4 of 10
       to conduct the home assessment but each time Mother cancelled the

       appointment. Although DCS recommended Mother to participate in home-

       based case management services and supervised parenting time, Mother only

       engaged in parenting time.


[9]    On August 29, 2016, the trial court conducted a CHINS evidentiary hearing.

       During the hearing, Mother testified that she works two jobs for a total of

       approximately fifty hours a week. While she is at work, the Children would

       either be in school or cared for by a family member or friend. Mother received

       food stamps in the amount of $440 per month until these lapsed in May of 2016

       because she had failed to get recertified. With respect to the Children’s lice

       problems, Mother claimed to have contacted the Children’s pediatrician and

       washed their hair with a medicated lice treatment. She admitted that FCM

       Crystal had contacted her “five, maybe six” times to assess her home. (Tr. p.

       44). Even though Mother cancelled the appointments each time, she never

       personally reached out to DCS to reschedule. Mother also confirmed to have

       moved four times in the past year. She explained that she lived with her aunt

       for a while, they stayed in a hotel for four weeks, and at a place “that is on

       Lockburn.” (Tr. p. 46). Despite the frequent moves, Mother was adamant that

       the Children’s schooling was not affected as she kept K.D. in the same school

       throughout.


[10]   Kenneth Moran (Moran), a case manager at New Horizon, Incorporated,

       supervised Mother’s parenting time. He testified that Mother attended each

       visitation and displayed a “normal interaction between a parent and a child.”

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2353 | March 28, 2017   Page 5 of 10
       (Tr. p. 32). The Children were always excited to see her and expressed a strong

       bond with her. Moran did not have any reason to believe that the Children

       would be seriously endangered in Mother’s care.


[11]   That same day, August 29, 2016, the trial court entered its dispositional order,

       adjudicating the Children to be CHINS. The trial court found that:

               the [C]hildren’s physical or mental condition is seriously
               impaired or endangered as a result of [Mother’s] inability, refusal
               or neglect to provide the [C]hildren with food, clothing, shelter,
               medical care, education, and supervision; the [C]hildren are in
               need of safe and stable home environment which [Mother] has
               not provided; and the coercive intervention of the [c]ourt is
               required because the [C]hildren are in need of care, treatment, or
               rehabilitation and a safe and stable home environment that they
               are not receiving or would not receive without the coercive
               intervention of the [c]ourt.


       (Appellant’s App. Vol. II, p. 81). The trial court continued the Children’s

       placement with their fathers. On September 26, 2016, the trial court entered

       dispositional and parental participation orders, ordering Mother to participate

       in home-based therapy and home-based case management services.


[12]   Mother now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review


[13]   DCS bears the burden of proving that a child is a CHINS by a preponderance of

       the evidence. In re K.B., 24 N.E.3d 997, 1001 (Ind. Ct. App. 2015). In

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2353 | March 28, 2017   Page 6 of 10
       reviewing a CHINS determination, our court does not reweigh evidence or

       assess witness credibility. Id. We consider only the evidence in favor of the

       trial court’s judgment, along with any reasonable inferences derived therefrom.

       Id. Further “a CHINS adjudication may not be based solely on conditions that

       no longer exist. The trial court should also consider the parents’ situation at the

       time the case is heard.” In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013).


[14]   When a trial court, as here, enters findings of fact and conclusions thereon

       pursuant to Indiana Trial Rule 52(A), we may not set aside the findings or

       judgment unless they are clearly erroneous. In re K.B., 24 N.E.3d at 1001. In

       our review, we first consider whether the evidence supports the factual findings

       and whether the findings support the judgment. Id. “Findings are clearly

       erroneous only when the record contains no facts to support them either

       directly or by inference.” Id. at 1002. A judgment is clearly erroneous if it

       relies on an incorrect legal standard. Id. We give due regard to the trial court’s

       ability to assess the credibility of the witnesses. T.R. 52(A). While we defer

       substantially to findings of fact, we do not do so for conclusions of law. In re

       K.B., 24 N.E.3d at 1002.


                                         II. Sufficiency of the Evidence


[15]   The purpose of the CHINS adjudication is to “protect the children, not punish

       parents.” In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied.

       When it is in the child’s best interest, the State may exert its parens patriae power

       and intervene to safeguard the child’s welfare. In re K.B., 24 N.E.2d at 1002.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2353 | March 28, 2017   Page 7 of 10
       However, trial courts must balance the child’s needs against the due process

       rights of the parents. Id. To support a CHINS adjudication, the CHINS statute

       provides that DCS must establish that, 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


       Ind. Code § 31-34-1-1. “That final element guards against unwarranted State

       interference in family life, reserving that intrusion for families ‘where parents

       lack the ability to provide for their children,’ not merely where they ‘encounter

       difficulty in meeting a child’s needs.’” In re S.D., 2 N.E.3d 1283, 1287 (Ind.

       2014).


[16]   Not challenging the trial court’s findings, Mother instead focuses on the trial

       court’s conclusion. Specifically, she contends that (1) there was insufficient

       evidence establishing that “a manifestation of head lice and poor hygiene” had

       seriously endangered the Children; (2) Mother’s changing residences and


       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2353 | March 28, 2017   Page 8 of 10
       cancelled appointments with DCS did not support the conclusion that she

       lacked stable housing; and (3) the Children’s needs were being met.

       (Appellant’s Br. p. 11).


[17]   The CHINS statute does not require the trial court and DCS to wait until a

       child is physically or emotionally harmed to intervene; rather, a child may be

       determined to be CHINS if his or her physical or mental condition is

       endangered. In re R.P., 949 N.E.2d 395, 401 (Ind. Ct. App. 2011). Here, the

       evidence reflects that both Children had a severe and recurring infestation of

       lice when they were with Mother. When the Children are in the care of their

       respective fathers, they receive medicated lice treatment, often twice a month.

       To keep this problem under control, J.T. keeps his hair intentionally very short.

       Through testimony DCS established that J.T was “dirty a lot” and also “very

       hungry.” (Tr. p. 17). While staying with Mother, the children “were sleeping

       on the couch and the floor.” (Tr. p. 18).


[18]   Although every child may encounter the occasional lice problem, we find that

       the almost persistent infestation which is present here, combined with Mother’s

       unwillingness to treat the Children’s hair and scalp, resulted in an

       endangerment of the Children’s health. These findings of poor hygiene while in

       Mother’s care, the Children’s lack of nutrition, and appropriate sleeping

       conditions clearly support the trial court’s conclusion that the Children’s

       wellbeing was seriously impaired.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2353 | March 28, 2017   Page 9 of 10
[19]   The record is also devoid of any evidence that the Children had a stable home

       while residing with Mother. During the factfinding hearing, Mother admitted

       to moving residences at least four times in the past year. Terhune, J.T.’s father,

       testified that Mother had moved four times in the past year without filing a

       notice of intent to relocate in the paternity cause. To abate DCS’s suspicions of

       neglect, both FCMs attempted to visit Mother’s residence to assess the

       condition of her home. FCM Johnson set up three visits and FCM Crystal

       scheduled five visits. However, each time prior to the scheduled appointment,

       Mother would cancel with an excuse. To date, DCS has yet to inspect

       Mother’s residence.


[20]   Children who are “endangered by parental action or inaction” are protected

       under the CHINS statute. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009).

       Mindful of the evidence before us, we find that Mother’s lack of cooperation

       with DCS highlights her inability or refusal to properly care for the Children.

       See, e.g., In re K.B., 24 N.E.2d at 1007. Accordingly, we cannot say that the trial

       court’s adjudication of the Children as CHINS is clearly erroneous.


                                             CONCLUSION
[21]   In light of the foregoing, we conclude that the trial court’s Order adjudicating

       Children as CHINS is not erroneous.


[22]   Affirmed.


[23]   Najam, J. and Bradford, J. concur


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