MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 May 09 2018, 6:49 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Amy Karozos                                              Curtis T. Hill, Jr.
Greenwood, Indiana                                       Attorney General of Indiana

                                                         Kyle Hunter
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Matter of: M.G.,                               May 9, 2018
Child in Need of Services                                Court of Appeals Case No.
                                                         49A04-1711-JC-2657
K.H. (Mother)
                                                         Appeal from the Marion Superior
Appellant-Respondent,                                    Court, Juvenile Division
        v.                                               The Honorable Marilyn Moores,
                                                         Judge
Indiana Department of Child                              The Honorable Danielle Gaughan,
Services                                                 Magistrate
                                                         Trial Court Cause No.
and
                                                         49D09-1705-JC-1736
Child Advocates, Inc.,
Appellees-Petitioners



Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018                 Page 1 of 9
                                                   Case Summary


[1]   M.G. (Child) was adjudicated a Child in Need of Services (CHINS) by the

      Marion Superior Court. K.H. (Mother) appeals, arguing that the Department

      of Child Services (DCS) did not present sufficient evidence to support the trial

      court’s CHINS determination.


[2]   We affirm.


                                          Facts & Procedural History1


[3]   Child was born on August 26, 2016, to Mother and J.G. (Father). Father also

      has two children with A.L.: Le.G., born December 29, 2014, and Lu.G., born

      February 17, 2016. Mother, Father, A.L., and the three young children were

      living together in an apartment.


[4]   Alicia Fry, a permanency case manager with DCS, became involved with

      Mother in December 2016. At the time, the case was classified as an informal

      adjustment due to the fact that Child tested positive for THC through his

      umbilical cord and Mother admitted to using marijuana during her pregnancy.

      As part of an assessment, Mother revealed that she was not getting mental

      health treatment although she claimed she had been diagnosed with bi-polar

      disorder, ADHD, split personality tendencies, and depression. Mother

      admitted that Child is afraid of her. She also informed Fry that she would put




      1
          Father does not appeal the CHINS determination. We therefore set forth the facts as pertinent to Mother.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018                 Page 2 of 9
      food on the carpet to keep Child busy while she and Father were “back in the

      room having alone time,” and that she would give Tylenol to Child to calm him

      down. Transcript at 66.


[5]   Fry visited Mother’s apartment and noted an abundance of clutter, a mattress

      on the floor, old food on the carpet, and “things you wouldn’t normally find

      inside the apartment like a tire sitting against the wall.” Id. at 67. Fry was

      aware that Mother and Father fought regularly and to such an extent that they

      had been threatened with eviction. Fry believed Mother needed services to

      ensure the safety and well-being of Child. She recommended homebased

      therapy, homebased case work, domestic violence training, mental health and

      substance abuse assessments, and that Mother follow all recommendations of

      those assessments.


[6]   On May 25, 2017, Mother and Father got into a verbal argument, which turned

      physical when Mother hit Father “several times.” Id. at 29. Father retrieved a

      handgun, pointed it at Mother, and threatened to shoot her. Father then

      pointed the gun at himself and threatened to commit suicide. A.L. and all three

      children were present and witnessed the incident.


[7]   IMPD Officer Theodore Cragen was dispatched to the apartment. Officer

      Cragen interviewed Mother and she told him what had happened. Mother also

      admitted to having mental health problems and admitted to considering suicide

      every day. Officer Cragen had the opportunity to see the inside of the

      apartment, which he described as cluttered. He saw on an end table, in plain


      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 3 of 9
      view, a pipe used for smoking narcotics. He also confiscated a part of the

      firearm Father had pointed at Mother,2 a BB gun, and two swords. Ultimately,

      Officer Cragen arrested Mother for battery and domestic battery, Father for

      pointing a firearm, battery, and domestic battery, and A.L. on an active arrest

      warrant for battery.


[8]   Given the situation, the Marion County DCS was contacted. Kwanza

      Johnson, a family case manager (FCM) with DCS arrived at the scene. FCM

      Johnson spoke with Father who was in the back seat of a police vehicle. Father

      told her about the fight and explained that he was “stressed out and tired of it,”

      so he went to the bedroom and retrieved the gun. Id. at 48. FCM Johnson also

      spoke with Mother before she was transported to jail and Mother told her that

      she “was tired of dealing with DCS.” Id. at 49. FCM Johnson then went to the

      second-floor apartment. As she approached, she noted a distinct marijuana

      smell coming down the stairwell. Inside the apartment, she observed a mattress

      up against the wall as well as a pack and play and various baby items. There

      was a wet spot on the floor and Child was soaked from his shoulders to his feet

      perhaps from something that had spilled. FCM Johnson took Child and placed

      him in kinship care.3




      2
        After the incident with Mother, but before police arrived, Father dismantled the firearm and his mother
      took parts of it to her house.
      3
       FCM Johnson also took A.L.’s two children into DCS care. A.L. later admitted that her two children were
      CHINS and that coercive intervention of the court was necessary to obtain and maintain a safe and
      appropriate home.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018                Page 4 of 9
[9]    On May 29, 2017, DCS filed a CHINS petition. A fact-finding hearing was

       held on August 29 and September 26, 2017. Thereafter, the court entered an

       order finding Child was a CHINS. A dispositional hearing was held on

       October 24, 2017, and the court entered a parental participation order the same

       day. Mother now appeals. Additional facts will be provided as necessary.


                                           Discussion & Decision


[10]   CHINS proceedings are civil actions, and therefore, “the State must prove by a

       preponderance of the evidence that a child is a CHINS as defined by the

       juvenile code.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). On review, we

       neither reweigh the evidence nor judge the credibility of the witnesses. Id. We

       consider only the evidence that supports the juvenile court’s decision and

       reasonable inferences drawn therefrom. Id. We reverse only upon a showing

       that the decision of the juvenile court was clearly erroneous. Id.


[11]   Where the trial court issues findings of fact and conclusions thereon, we apply a

       two-tiered standard of review. In re R.P., 949 N.E.2d 395, 400 (Ind. Ct. App.

       2011). We consider first whether the evidence supports the findings and then

       whether the findings support the judgment. Id. We will set aside the trial

       court’s findings and conclusions only if they are clearly erroneous and a review

       of the record leaves us firmly convinced that a mistake has been made. Id.

       “Findings are clearly erroneous only when the record contains no evidence to

       support them either directly or by inference.” K.B. v. Ind. Dep’t of Child Servs., 24




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 5 of 9
       N.E.3d 997, 1001-02 (Ind. Ct. App. 2015) (citation omitted). “A judgment is

       clearly erroneous if it relies on an incorrect legal standard.” Id. at 1002.


[12]   To meet its burden of establishing CHINS status, DCS must prove that the

       child is under 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. Although the acts or omissions of one or both parents

       can cause a condition that creates the need for court intervention, the CHINS

       designation focuses on the condition of the child rather than on an act or

       omission of the parents. In re N.E., 919 N.E.2d at 105. “[T]he purpose of a

       CHINS adjudication is to protect children, not punish parents.” N.L. v. Ind.

       Dep’t of Child Servs., 919 N.E.2d 102, 106 (Ind. 2010).


[13]   Mother first argues that DCS did not prove that domestic violence is an

       ongoing issue that poses a risk to Child. Mother’s argument in this regard is

       based solely on the fact that the criminal charges filed against her had been

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 6 of 9
       dismissed prior to the CHINS fact-finding hearing. She asserts that the CHINS

       adjudication “may not be based solely on conditions that no longer exist.”

       Appellant’s Brief at 13 (citing In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App.

       2013)).


[14]   Contrary to Mother’s argument, the dismissal of criminal charges does not in

       and of itself alleviate the concern for Child’s well-being. DCS presented

       evidence that domestic violence in the home was ongoing and that it was to

       such an extent that Mother and Father were threatened with eviction.

       Although the charges against Mother were dropped, such does not change the

       fact that Mother and Father fight on a regular basis. With regard to the most

       recent altercation, Mother and Father fought in front of Child and the other

       minor children. Mother instigated the physical altercation by hitting Father

       several times. The fight escalated to the point where Father retrieved a

       handgun and threatened to shoot Mother before pointing the gun at himself and

       threatening to shoot himself. DCS established by a preponderance of the

       evidence that domestic violence issues within the home pose a risk to Child’s

       well-being.


[15]   Mother also argues that DCS failed to prove that her mental health posed an

       ongoing risk to Child. Mother asserts that her mental health was not a basis for

       the CHINS petition and that even if it was, DCS presented no evidence as to

       her mental health except for her own statements that she had been diagnosed

       with bi-polar disorder, ADHD, split personality tendencies, and depression.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 7 of 9
[16]   While the domestic violence incident renewed DCS’s involvement with

       Mother, DCS alleged that Child was a CHINS in part because Mother failed to

       provide Child with a safe, stable, and appropriate living environment by

       receiving proper mental health care. As Mother herself observes, she made

       statements to DCS indicating that she had previously been diagnosed with

       mental health issues. When an officer responded to this most-recent domestic

       violence incident, Mother told the officer that she contemplates suicide every

       day. This evidence is sufficient to support the finding that Mother’s mental

       health posed an ongoing risk to Child.


[17]   Finally, Mother argues that DCS did not establish that coercive intervention of

       the court was needed. Mother asserts that the fact that she did not participate

       in services prior to the CHINS determination cannot be the basis for the

       CHINS determination because DCS failed to establish that such services were

       needed for Child’s well-being.


[18]   DCS recommended that Mother engage in homebased therapy, homebased

       case work, domestic violence training, mental health and substance abuse

       assessments, and that Mother follow all recommendations of those assessments.

       DCS related each of the requested services to the facts of the situation before it.

       Specifically, domestic violence training was needed to address the ongoing

       domestic violence between Mother and Father, and especially the most recent

       escalation thereof. Mother’s own statements to DCS as to her mental health

       diagnoses as well as her statement to police that she contemplates suicide every

       day supports the request for a mental health assessment. Mother’s behaviors,

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 8 of 9
       including giving Child Tylenol to calm him down or leaving food on the floor

       to keep Child occupied, demonstrate the need for homebased therapy and

       homebased case work. Prior to the CHINS determination, Mother refused to

       participate in such services because she felt they were unnecessary. DCS has

       established the need for the services and that coercive intervention of the court

       was necessary to secure Mother’s compliance with the requested services.


[19]   In sum, our review of the record leads us to conclude that the evidence

       sufficiently supports the court’s findings, and those findings support the court’s

       CHINS determination.


       Judgment affirmed.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-JC-2657 | May 9, 2018   Page 9 of 9
