MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                              Dec 21 2016, 8:51 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of D.K., Child in                          December 21, 2016
Need of Services,                                        Court of Appeals Case No.
                                                         49A05-1607-JC-1641
N.B. (Mother),
                                                         Appeal from the Marion Superior
Appellant-Respondent,                                    Court
        v.                                               The Honorable Danielle P.
                                                         Gaughan, Magistrate
Indiana Department of Child                              The Honorable Marilyn A.
Services,                                                Moores, Judge

Appellee-Petitioner.                                     Trial Court Cause No.
                                                         49D09-1601-JC-330



Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016   Page 1 of 10
                                              Case Summary
[1]   N.B. (Mother) contends that the evidence is insufficient to support the juvenile

      court’s determination that her son is a child in need of services (CHINS)

      because his physical or mental condition is seriously impaired or endangered as

      a result of Mother’s failure to provide him with necessary shelter. Finding the

      evidence sufficient, we affirm.



                                Facts and Procedural History
[2]   D.K. was born June 7, 2000. He lives with Mother, who has cerebral palsy and

      mental-health issues, and his two adult sisters in Indianapolis.1 D.K. is a

      special-needs child with several diagnoses, including hydrocephalus, cerebral

      palsy, epilepsy, severe asthma, autism, developmental delays, ADHD, and

      scoliosis. D.K. sees several medical specialists, including a pulmonologist,

      pediatrician, neurologist, and physical therapist; he also goes to a cerebral-palsy

      clinic. In the eighteen-month period before the fact-finding hearing in this case,

      D.K. had been to the emergency-room three times, twice for seizures and once

      for an asthma attack; the asthma attack required a multi-day hospital stay.

[3]   In March 2015, the Department of Child Services (DCS) investigated a report

      that Mother’s house was unsanitary. Specifically, there were roaches and roach

      droppings throughout the kitchen, including inside the refrigerator, and trash




      1
          D.K.’s father was not located during the CHINS proceeding and is not part of this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016        Page 2 of 10
      throughout the house. Mother confirmed that she had a problem with roaches

      and mice and indicated that she wanted help caring for her home and D.K.

      Because Mother had no DCS history and was willing to participate in services,

      DCS entered into an informal adjustment (IA) with Mother. See Ind. Code ch.

      31-34-8. Pursuant to the IA, Mother agreed to keep her home “sanitary” and

      “clean” and to participate in the Choices program. Ex. 1. The Choices

      program provided Mother with homemaker/parent-aide and extermination

      services in order to get her house clean and develop her organizational skills.

      The juvenile court approved the IA for six months.

[4]   Family Case Manager Erma Watson worked with the family during the IA

      period. Mother, however, made little progress during this time. FCM Watson

      explained that there may have been a day where Mother’s house was fairly

      clean (but, notably, never free of roaches). However, when she would return a

      week later, “the home would be back to deplorable conditions.” Tr. p. 30.

      FCM Watson discussed with Mother how the conditions of her home could

      affect a child with asthma; Mother agreed and said she would “do better.”

      Id. at 35.


[5]   Marsha Mora, a homemaker/parent aide with Seeds of Life, also met with

      Mother on numerous occasions during the IA period and taught her how to

      clean and organize her house. Mora took photos of Mother’s home in July

      2015, describing the conditions as “deplorable.” Id. at 68.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016   Page 3 of 10
[6]   DCS submitted a report to the juvenile court describing Mother’s lack of

      progress. On August 13, 2015, the court, based on DCS’s report and the

      photos, issued a finding that “the condition of the home poses significant risks

      to the health, safety, and welfare of the special needs child involved in this

      matter.” Ex. 4. The IA was unsuccessfully closed on September 4. Ex. 6.

      That same day, DCS filed a petition alleging that D.K. was a CHINS. Ex. 70,

      71. At the initial hearing, the court allowed D.K. to remain with Mother,

      provided that Mother complete the extermination of her house and participate

      in home-based therapy, home-based case management, and parent mentoring.

      The CHINS petition was ultimately dismissed because the fact-finding hearing

      was scheduled outside the statutory timeframe. See Ind. Code § 31-34-11-1.

      Around the time that the CHINS petition was filed, a new family case manager,

      Cassandra Hopper, took over the case from FCM Watson. According to FCM

      Hopper, whenever she went to Mother’s house there were cockroaches “all

      over,” particularly on the food inside the refrigerator, water in the carpet, and

      clothes and trash piled everywhere. Tr. p. 50.

[7]   On January 28, 2016, DCS filed a second petition alleging that D.K. was a

      CHINS pursuant to Indiana Code section 31-34-1-1 based on Mother’s failure

      to provide D.K. “with a safe, sanitary, and appropriate living environment”

      because her house was “cluttered with trash, clothes, and mold” and infested

      with roaches. Appellant’s App. p. 32. At this time, there was a new family

      case manager assigned to the case, Kennedy Udokporo.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016   Page 4 of 10
[8]    The fact-finding hearing was held on April 18, 2016. Parent aide Mora testified

       that she had been re-referred to Mother’s case in February 2016 to conduct pop-

       ins at Mother’s house two or three times a week to check the status of her house

       (but not to help with cleaning). Mora took photos of Mother’s house on April

       7, 2016, and noted that it looked “better than I have ever seen it throughout the

       entire case.” Tr. p. 75. But Mora said that when she returned to Mother’s

       house just five days later on April 12, it looked “bad”; and when she returned

       the day before the hearing, it looked “worse.” Id.


[9]    Angela Johnson, a case manager with Stepping Stones, also testified. Johnson

       started working with Mother in late February or early March 2016 to help

       Mother with cleaning. When Johnson first started helping Mother, she

       observed “roaches dropping from the ceiling.” Id. at 84. When Johnson

       returned to Mother’s house the week before the hearing, she did not see roaches

       dropping from the ceiling, but she did see roach feces on the ceiling. Mother’s

       house was also cluttered and unclean. Johnson, like FCM Watson, warned

       Mother that the condition of her house, particularly the roach feces, could

       exacerbate D.K.’s asthma; Mother’s response was that she would “get it

       together.” Id. at 87. Mother, however, did not make much progress because

       she was inconsistent with her appointments.


[10]   Shari Grizzle, a social worker and therapist with Stepping Stones, also testified.

       She worked with Mother from February to March 2016. Mother was supposed

       to meet with Grizzle twice a week to work on her organization and

       communication skills. The sessions were at Mother’s house, which Grizzle

       Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016   Page 5 of 10
       described as “unclean, filthy, [and] roach-infested.” Id. at 96. Grizzle

       ultimately closed Mother’s case due to missed appointments.

[11]   FCM Udokporo testified that he became the family’s case manager in January

       2016. He explained that he had been inside Mother’s house on three occasions

       (although he tried to come inside on more occasions) and that on each occasion

       the house was “dirty” with “clutter everywhere.” Id. at 110. FCM Udokporo

       believed that the condition of the house was not conducive for D.K.’s health.

       Id. at 112.


[12]   Finally, the guardian ad litem, Andrea Manning-Dudley, testified that it was in

       D.K.’s best interests for the court to continue to be involved in the case.

[13]   In May 2016, the juvenile court issued an order finding D.K. to be a CHINS.

       In particular, the court found:

               15. From the filing of the CHINS petition on September 4, 2015
               until the dismissal of the petition on January 11, 201[6], Mother
               continued to struggle with maintaining the cleanliness of the
               home. Mother’s home was below minimum standards with bugs
               all over the home and mold and water in the carpet.


                                                    *****


               17. Since the filing of the second CHINS petition, services have
               continued to be in place to assist Mother. Mother participated in
               therapy at first but in March of 2016 she missed five
               appointments. Mother was inconsistent with appointments with
               her home based case manager, Angela Johnson. The home



       Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016   Page 6 of 10
               continued to be unclean and cluttered and bug infested.
               Sometimes cockroaches would drop from the ceiling.


       Appellant’s App. p. 63. Accordingly, the court concluded:


               19. 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 to supply the child with
               necessary shelter. The condition of Mother’s home is
               chronically deplorable. There are periods of improvement but
               progress is only temporary. [D.K.] is a special needs child with
               several diagnoses including severe asthma. The condition of the
               home poses significant risks to his health and welfare. Mother is
               aware of the risks but is overwhelmed by the demands of the care
               [D.K.] requires and is unable to maintain a healthy and safe
               environment for [D.K.].


               20. The coercive intervention of the Court is necessary to ensure
               the child’s safety and well-being. Mother has not consistently
               participated in home based therapy and home based case
               management and the condition of the home is chronically
               deplorable. Mother has shown a pattern of sometimes making
               improvements to the condition of the home but cannot maintain
               the cleanliness of the home. DCS has been involved with this
               family since March of 2015 and the condition of the home
               continues to be unsanitary, cluttered with trash and clothing.


       Id. at 63-64 (emphasis added). In its dispositional order, the court placed D.K.

       with Mother and ordered Mother to participate in home-based case

       management, home-based therapy, and homemaker/parent-aide services.

[14]   Mother now appeals.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016   Page 7 of 10
                                  Discussion and Decision
[15]   Mother contends that there is insufficient evidence to support D.K.’s CHINS

       adjudication. When reviewing the sufficiency of the evidence for a trial court’s

       CHINS determination, we neither reweigh the evidence nor judge the

       credibility of the witnesses. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).

       Instead, we consider only the evidence that supports the trial court’s decision

       and any reasonable inferences drawn therefrom. Id. We reverse only upon a

       showing that the decision of the trial court is clearly erroneous. Id.


[16]   A CHINS adjudication under Indiana Code section 31-34-1-1 requires three

       basic elements: that the parent’s actions or inactions have seriously endangered

       the child, that the child’s needs are unmet, and that those needs are unlikely to

       be met without State coercion. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014),

       reh’g denied. In full, the statute 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


       Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016   Page 8 of 10
                         (B) is unlikely to be provided or accepted without the
                         coercive intervention of the court.


       Ind. Code § 31-34-1-1. DCS must prove these elements by a preponderance of

       the evidence. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010).


[17]   Here, Mother challenges only the first element, that is, whether DCS proved by

       a preponderance of the evidence that Mother’s actions or inactions seriously

       impaired or endangered D.K.2 See Appellant’s Br. p. 15 (“Mother challenges

       the first element: whether Mother’s actions or inactions have seriously

       endangered the child.”). Mother, assuming that the trial court based its CHINS

       determination on the fact that cockroaches made D.K.’s asthma worse,

       essentially argues that DCS should have presented expert medical testimony at

       the hearing to prove that the cockroaches actually made D.K.’s asthma worse.

       Id. at 18 (“Here, the potential effect of cockroaches on D.K.’s medical condition

       was a scientific issue beyond the knowledge of a lay person . . . .”). However,

       the juvenile court did not make such a narrow finding when it determined that

       Mother’s actions or inactions seriously impaired or endangered D.K. Rather,

       the court found the conditions of Mother’s home to be “chronically

       deplorable,” including cockroaches falling from the ceiling, trash and clutter




       2
        In a footnote, Mother also argues that the trial court erred by admitting certain testimony because it was
       hearsay. See Appellant’s Br. p. 17 n.4. Specifically, Mother points to testimony from FCM Watson in which
       she vaguely referenced “information” that states “a home with cockroaches could affect a child that has
       asthma.” Tr. p. 35. Even if the trial court erred by admitting this testimony as hearsay, we find that it is
       harmless. See Davis v. Garrett, 887 N.E.2d 942, 947 (Ind. Ct. App. 2008) (“[E]rrors regarding the admission of
       evidence—including hearsay—are harmless unless they affect the substantial rights of a party.”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016          Page 9 of 10
       throughout the home, and mold and water in the carpet. The court noted that

       D.K. is a special-needs child with several diagnoses, including severe asthma.

       Based on these unchallenged findings, the court concluded that “[t]he condition

       of the home poses significant risks to [D.K.’s] health and welfare.” (Emphasis

       added). Based on the conditions of Mother’s home, as described by the

       testimony of multiple witnesses at the hearing and illustrated by numerous

       photos, we find this broad conclusion to be reasonably based on the evidence.

       We therefore affirm the court’s determination that D.K. is a CHINS because his

       physical or mental condition is seriously impaired or endangered as a result of

       Mother’s failure to provide him with necessary shelter.

[18]   Affirmed.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1607-JC-1641 | December 21, 2016   Page 10 of 10
