Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                           FILED
regarded as precedent or cited before                         Nov 07 2012, 9:26 am
any court except for the purpose of
establishing the defense of res judicata,                            CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
collateral estoppel, or the law of the case.                              tax court




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

STEVEN J. HALBERT                                   PATRICK M. RHODES
Carmel, Indiana                                     DCS, Marion County Office
                                                    Indianapolis, Indiana

                                                    ROBERT J. HENKE
                                                    DCS Central Administration
                                                    Indianapolis, Indiana
                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF                                    )
C.C., (Minor Child), a Child in Need of Services,   )
                                                    )
M.W., Mother,                                       )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )     No. 49A04-1203-JC-127
                                                    )
INDIANA DEPARTMENT OF CHILD                         )
SERVICES,                                           )
                                                    )
       Appellee-Petitioner,                         )
                                                    )
CHILD ADVOCATES, INC.                               )
                                                    )
       Co-Appellee-Guardian ad Litem.               )

                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Marilyn A. Moores, Judge
                        The Honorable Danielle Gaughan, Magistrate
                             Cause No. 49D09-1108-JC-33098

                                       November 7, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
       M.W. (Mother) appeals following the adjudication of her seventeen-year old son,

C.C., as a Child in Need of Services (CHINS). Mother agrees C.C. is a CHINS, but she

challenges the statutory definition upon which, and thus the factual basis for which, he was

declared a CHINS. Because she bases her legal arguments on facts other than those found by

the trial court, and the record supports the trial court’s findings and conclusions, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       The trial court found:

       [C.C.]’s parents are not providing food, clothing, shelter, education, medical
       care or supervision for him. [Father]’s whereabouts are unknown. [Mother]
       will not allow [C.C.] to reside in her home due to her stated fear of him.
       [C.C.] has been at Lutherwood Treatment Facility since August of 2011 and
       neither the child’s therapist nor the guardian ad litem [GAL] has observed
       behavior that would lead them to believe that the child is a danger to himself or
       others. Due to [C.C.]’s lack of a parent who is able or willing to provide care
       for him, the Court finds him to be a child in need of services.

(App. at 92.)

                             DISCUSSION AND DECISION

       Mother challenges the findings and the statutory basis on which C.C. was declared a

CHINS.

              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. We neither reweigh the evidence nor judge the credibility of the
       witnesses. We consider only the evidence that supports the trial court’s
       decision and reasonable inferences drawn therefrom. We reverse only upon a
       showing that the decision of the trial court was clearly erroneous.

In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (internal quotations and citations omitted).

       Mother asserts the court should have declared C.C. a CHINS pursuant to Ind. Code §

                                              2
31-34-1-6, which provides:

       A child is a child in need of services if before the child becomes eighteen (18)
       years of age:
       (1) the child substantially endangers the child’s own health or the health of
       another individual; 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.

The court explicitly declined to find C.C. a CHINS under this section: “The Court denies

[Mother]’s request that the matter be considered under Indiana Code 31-34-1-6 and her oral

motion to dismiss.” (App. at 92.) Nor could the court’s findings – reiterating neither C.C.’s

therapist nor his GAL thought he was a danger to himself or others –have permitted the court

to find C.C. was a CHINS under that statutory definition.

       Instead, the court found, in accordance with the petition filed by the Department of

Child Services (DCS), that C.C. was a CHINS pursuant to Ind. Code § 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
       (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.

To support her appellate argument that adjudicating C.C. to be a CHINS under that statute

was erroneous, Mother asserts she “did not neglect her son by insisting that he remain in a

                                               3
facility where he could receive treatment and [by] refusing to take him to her home where he

was a danger to himself and the family.” (Br. of Appellant at 3 (formatting removed)).

        Initially, we note:

               Juvenile court judges are often faced with the challenge of balancing
        multiple factors and multiple voices in a CHINS case. Judges must uphold the
        due process rights of parents, apply the proper law, and take into account
        recommendations and input from the court appointed special advocate
        (CASA), DCS, parents, step-parents, guardians, grandparents, the child, and
        often several attorneys. By their very nature these cases do not fit neatly
        defined guidelines.
               Juvenile law is constructed upon the foundation of the State’s parens
        patriae power, rather than the adversarial nature of corpus juris. Indeed,
        juvenile court jurisdiction is rooted in social welfare philosophy rather than in
        the corpus juris. The purpose of the CHINS adjudication is to protect the
        children, not punish parents. The process of the CHINS proceeding focuses on
        the best interests of the child, rather than guilt or innocence as in a criminal
        proceeding. As previously mentioned, sometimes a child can be adjudicated a
        CHINS through no fault of the parent . . . .

In re K.D., 962 N.E.2d at 1255 (internal quotations and citations omitted).

        Although Mother’s argument raises interesting policy questions about how our State

might best serve families when a child’s mental health impairs a parent’s ability to care for

that child, we need not reach those policy questions today because Mother’s argument rests

on erroneous factual assertions.1

        First, Mother argues the trial court erred because she “did not neglect her son.” (Br.


1
 We believe the legislature is the branch of government best equipped to consider the type of broad policy
questions Mother raises. To that end, our legislature recently created an “interim study committee on
underserved youth with mental health issues” to investigate:
        (1) whether prosecuting attorneys should be allowed to file a petition alleging that a child is a
        child in need of services under IC 31-34-1-6; and
        (2) the unmet mental health needs of children within the juvenile justice system, including
        children in need of services and delinquent children.
2012 Ind. P.L. 48-2012, Sec. 76 (effective July 1, 2012).
                                                    4
of Appellant at 3 (formatting removed)). We acknowledge this statute has been referred to as

“the ‘neglect’ statute.” See In re K.D., 962 N.E.2d at 1255. However, the trial court did not

find “neglect.” It instead found there was no “parent who is able or willing to provide care.”

(App. at 92.) As DCS notes, Ind. Code § 31-34-1-1 was written in the disjunctive, so the

court could find “Mother was unable, refused, or neglected” to care for her child. (Br. of

Appellee at 14) (emphasis in original); see also I.C. 31-34-1-1 (stating child is a CHINS if

endangered by the “inability, refusal, or neglect of the child’s parent” to provide). The court

did not need to find neglect to decide the child was a CHINS under that section. See, e.g., In

re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999) (where legislature writes a statute in the

disjunctive, with two possibilities, court needs find only one of the prongs), trans. denied.

        Second, Mother asserts C.C. “was a danger to himself and the family.” (Br. of

Appellant at 3 (formatting removed)). The trial court found “neither the child’s therapist nor

the guardian ad litem has observed behavior that would lead them to believe that the child is

a danger to himself or others.” (App. at 92.) It obviously chose to believe the testimony of

the therapist and GAL, rather than the testimony of Mother, and we are not permitted to

assess the credibility of witnesses or reweigh the evidence. See In re K.D., 962 N.E.2d at

1253.

        Finally, the record leaves no doubt that Mother was unwilling to bring C.C. home

from Lutherwood. Mother testified:

        Q:    Did Lutherwood ask you to come get him?
        A:    Yes.
        Q:    Okay and did you go get him?
        A:    No.
                                           5
        Q:      Did you tell him that you would not come get him?
        A:      I did.
        Q:      So that’s, that happened about when?
        A:      In August of 2011.
        Q:      August of 2011 and since that time, you’ve never picked him up, is that
                correct?
        A:      No.
        Q:      And you still decline to do so?
        A:      Yes.

(Tr. at 8-9.) We cannot find error in the finding Mother was unwilling to take C.C. home and

the conclusion based thereon that he is a CHINS pursuant to Ind. Code § 31-34-1-1.2

        Affirmed.

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




2
 Mother argues we should reverse based on our holding in In re V.H., 967 N.E.2d 1066 (Ind. Ct. App. 2012).
V.H. is distinguishable. V.H. was a sixteen-year-old who had physically assaulted her mother on two
occasions. Following the second assault, police placed V.H. in Lutherwood’s Emergency Shelter. Although
V.H.’s mother refused to take V.H. home from Lutherwood until V.H. received some counseling, V.H.’s
mother took her home within a month of her entering Lutherwood and well before a CHINS factfinding
hearing occurred. In contrast, Mother refused to take C.C. home even after he had received therapy, and the
court heard testimony that C.C. was not a danger to himself or others. That C.C.’s mother appeared to have no
intention of ever allowing C.C. to return to her home makes the case before us distinguishable from V.H.
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