MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                           Nov 15 2019, 9:11 am
regarded as precedent or cited before any
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
Frederick A. Turner                                      Curtis T. Hill, Jr.
Bloomington, Indiana                                     Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: E.W. and I.W.                          November 15, 2019
(Minor Children), Children in                            Court of Appeals Case No.
Need of Services,                                        19A-JC-1495
and                                                      Appeal from the Monroe Circuit
                                                         Court
C.A. (Mother),
                                                         The Honorable Holly M. Harvey,
Appellant-Respondent,                                    Judge

        v.                                               Trial Court Cause Nos.
                                                         53C06-1807-JC-525
                                                         53C06-1807-JC-526
Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019                   Page 1 of 14
[1]   C.A. (Mother) appeals the order finding her minor children, E.W. and I.W., to

      be children in need of services (CHINS), arguing that the evidence is

      insufficient to establish that the coercive intervention of the court is necessary.

      Mother also appeals the order granting physical custody of E.W. to his father,

      arguing that the juvenile court made erroneous findings of fact and that the

      evidence does not support a conclusion that a custody modification is in E.W.’s

      best interests. Finding the evidence sufficient and no reversible error with

      respect to custody, we affirm.


                                                      Facts
[2]   I.W.1 was born in January 2009 to Mother and L.M. (“I.W.’s Father”), and

      E.W. was born in August 2011 to Mother and J.R. (“E.W.’s Father”). Mother

      has prior history with the Department of Child Services (DCS), including a

      termination of parental rights to two other children in 2007 and a CHINS case

      with I.W. in 2009. Mother shared custody of the children with their respective

      fathers. Mother lived in Bloomington, I.W.’s Father lived in Texas, and E.W.’s

      Father lived in Indianapolis.


[3]   On July 5, 2018, Mother was arrested for domestic battery, criminal

      recklessness, and attempted battery with a deadly weapon; the victim of the

      alleged violence was her husband (Husband), who is not the father of either




      1
        The juvenile court entered an order on September 13, 2018, changing I.W.’s name to I.W.M., but for the
      sake of clarity, we will refer to the child as I.W. throughout this opinion.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019              Page 2 of 14
      child. The children were present while she allegedly committed these crimes—

      indeed, Mother allegedly hit I.W. in the face multiple times and threatened

      Husband and the children with a knife. Mother later admitted that she had

      consumed twenty double shots of liquor before she was arrested, that she had

      an alcohol abuse problem, and that she had untreated mental health issues.

      While in jail, Mother made suicidal statements. The children have observed

      Mother impaired and/or unstable on multiple occasions. Husband reported

      that Mother has a long history of domestic violence against both him and the

      children, alcohol and drug abuse issues, and untreated mental health problems.


[4]   DCS filed a petition alleging that the children were CHINS on July 9, 2018. At

      the initial hearing, held that same day, the juvenile court ordered the children

      removed from Mother’s care and custody and that both would be placed with

      E.W.’s Father in Indianapolis. After E.W.’s Father reported stress in the home

      between his girlfriend and I.W., the juvenile court moved I.W. into foster care

      on November 5, 2018.


[5]   The juvenile court held a factfinding hearing on the CHINS petition on

      November 28, 2018. The only witness to testify at the factfinding hearing was

      the DCS Family Case Manager (FCM) who investigated the initial allegations.

      On December 3, 2018, the juvenile court found the children to be CHINS,

      emphasizing the alleged crimes Mother committed in front of the children, her

      extreme alcohol consumption, her suicidal statements, and her previous

      involvements with DCS. The juvenile court also found as follows:



      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 3 of 14
              Although the Fathers of the Children intend to seek legal and
              physical custody of the children, they currently have not done so
              in this case. Without a custody order limiting Mother’s contact
              for the protection of the children, a CHINS case is needed for
              that purpose. Therefore the coercive intervention of the court is
              needed to ensure the safety of the children.


      Appealed Order p. 2.


[6]   Subsequently, both fathers filed motions to modify custody. The juvenile court

      held a dispositional hearing on January 22 and February 5, 2019. The February

      5 hearing also served as a custody modification hearing for E.W. At that

      hearing, the following evidence was introduced:


          • Mother was participating in intensive outpatient therapy (IOP), recovery
            services, supervised therapeutic visitation, random drug screens, and
            therapy. She had one positive drug screen for THC in December but had
            tested clean since that time.
          • Mother found housing in a shelter and had stable employment. She was
            on a waiting list for an apartment at the Coburn Place shelter.
          • Mother’s visits took place in the community because the visit supervisors
            did not feel her home was appropriate. Mother had an affectionate
            relationship with the children. At one visit, I.W. reported that other
            children in E.W.’s Father’s house had been hitting him. Mother “began
            to escalate” and the visit was ended; during the drive home, Mother
            made death threats against the FCM and E.W.’s Father and had great
            difficulty calming down. Tr. Vol. I p. 135.
          • The children were very close with each other and with Mother. Mother
            paid them a dollar to go to E.W.’s Father’s home, cry, and say they did
            not want to be with him anymore.
          • The children reported that E.W.’s Father had spanked them with a belt.
          • The FCM had no safety concerns about E.W.’s Father or his home.
            E.W. was thriving in his father’s care, was happy, and was getting good
            grades, but his behavior was worsening because he was stressed by the

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 4 of 14
            legal proceedings. E.W.’s Father has stable employment and his
            girlfriend provided childcare when he was at work. He reported that
            Mother had repeatedly threatened him, come to his house uninvited, and
            said she would blow up the house with the kids inside of it.
          • Husband testified about Mother’s alcohol abuse and violence. After his
            testimony, while the court and counsel were discussing scheduling
            matters, Mother said, “I did not try to kill the dude. You can whisper a
            little bit more quieter.” The court said, “Hey, button it,” but Mother
            kept arguing, “he’s just trying to kill my son” and “he over there
            whispering.” Id. at 126.
          • At another point in the hearing, while the court and counsel were
            discussing scheduling matters, Mother said, “Okay, I’m sorry. I’m not
            trying to be rude or nothing . . . but, my child is in an abusive home and I
            cannot sleep. I cannot go another month without eating and worrying
            about my child being abused.” Id. at 151. She continued to interject and
            speak out of turn.
          • Mother admitted that she was an alcoholic and has borderline
            personality disorder.

[7]   On March 28, 2019, the juvenile court entered two orders: (1) the first order

      granted custody of E.W. to his father and discharged the CHINS finding as to

      E.W.; and (2) the second order was a dispositional order. In the custody order,

      the juvenile court found as follows:


              2.      Mother has inconsistently participated in the
                      recommended referrals of the DCS. Mother is
                      participating in IOP, though has not been consistent in
                      attendance. Her drug screen had been consistently
                      positive for marijuana until November of 2018, and
                      Mother had one other positive screen in December while
                      the remaining screens available to the date of the
                      Predispositional Report were negative. She only recently
                      obtained an AA sponsor. . . . She reported being on track
                      to graduate IOP by the end of February. Mother is visiting
                      with the children regularly. She resides in Julian Center,
      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 5 of 14
                and is on the wait list for a family shelter. She has
                maintained employment.


        3.      At the time of the dispositional hearing, the circumstances
                giving rise to the filing of the Petition and the finding of
                CHINS had not been remedied, and Mother is not yet
                capable of having [E.W.] returned to her care and custody.


                                                ***


        5.      [E.W.] is doing well since being placed in the custody of
                his Father. . . . The DCS has not expressed any concerns
                about [E.W.’s] safety while in Father’s care.


        6.      Father has demonstrated an ability to care for [E.W.]. He
                has regular employment. Father has stable housing where
                he lives with his partner of approximately ten years . . . .
                [E.W.] is bonded to [Father’s girlfriend] and gets along
                well with his three step-siblings, [girlfriend’s] children. . . .


        7.      Mother’s incarceration and failure to remedy the
                circumstances giving rise to the removal of the children
                from her home by maintaining stable housing and
                inconsistently maintaining sobriety represent a substantial
                and continuing change in circumstances which support a
                modification of custody. It is in the best interests of the
                child that Father have physical custody of [E.W.]


                                                ***


        1.      [E.W.’s Father] shall have physical custody of [E.W.] and
                the parties shall continue to share joint legal custody.




Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 6 of 14
              2.      [Mother] shall have parenting time with the children at
                      times and locations as agreed by the parties. . . . [Mother]
                      shall have no unsupervised parenting time.


      Appellant’s App. Vol. II p. 38-40. The dispositional order required Mother to

      participate with IOP and other recovery services, to participate in weekly

      therapy and home-based case management, to refrain from using drugs and

      alcohol, and to submit to random drug screens. I.W. remained in foster care.

      Mother now appeals the finding that I.W. is a CHINS and the order granting

      physical custody of E.W. to his father.


                                   Discussion and Decision
                                        I. CHINS Finding
[8]   Our Supreme Court has explained the nature of a CHINS proceeding and

      appellate review of a CHINS finding as follows:


              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.” In re N.E., 919 N.E.2d
              102, 105 (Ind. 2010). We neither reweigh the evidence nor judge
              the credibility of the witnesses. Egly v. Blackford County Dep’t of
              Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
              only the evidence that supports the trial court’s decision and
              reasonable inferences drawn therefrom. Id. We reverse only
              upon a showing that the decision of the trial court was clearly
              erroneous. Id.


              There are three elements DCS must prove for a juvenile court to
              adjudicate a child a CHINS. DCS must first prove the child is
              under the age of eighteen; DCS must prove one of eleven

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 7 of 14
              different statutory circumstances exist that would make the child
              a CHINS; and finally, in all cases, DCS must prove the child
              needs care, treatment, or rehabilitation that he or she is not
              receiving and that he or she is unlikely to be provided or accepted
              without the coercive intervention of the court. In re N.E., 919
              N.E.2d at 105.


      In re K.D., 962 N.E.2d 1249, 1253-54 (Ind. 2012) (footnote omitted).


[9]   Here, DCS alleged that I.W. was a CHINS pursuant to Indiana Code section

      31-34-1-1, which provides as follows:


              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:

                      (A)      when the parent, guardian, or custodian is
                               financially able to do so; or

                      (B)      due to the failure, refusal, or inability of the parent,
                               guardian, or custodian to seek financial or other
                               reasonable means to do so; 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.




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 8 of 14
       Our Supreme Court has interpreted this provision to require “three basic

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

       child, that the child’s needs are unmet, and (perhaps most critically) that those

       needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,

       1287 (Ind. 2014).


[10]   Mother’s only argument related to I.W.’s CHINS status is that the evidence is

       insufficient to show that he needs care, treatment, or rehabilitation that is

       unlikely to be provided or accepted without the coercive intervention of the

       court. The record reveals that Mother’s parental rights to two other children

       were terminated in 2007 and that she had a previous CHINS case with I.W. in

       2009. Despite these experiences, Mother continued to drink excessively and

       behave violently, resulting in her arrest on serious criminal charges. After her

       arrest, she expressed suicidal thoughts; after the children were removed, she

       continued to drink alcohol. There was also evidence gathered by the

       investigating FCM that the children had both witnessed and experienced

       domestic violence at her hands repeatedly over the years.


[11]   The purpose of a CHINS case is “to help families in crisis—to protect children,

       not punish parents.” Id. at 1285. In this case, the evidence shows that I.W.

       needed protection and Mother needed help. I.W. was seriously endangered in

       Mother’s care and custody and, until DCS and the juvenile court got involved

       with this family, Mother was not attempting to address her serious substance

       abuse and mental health issues. Under these circumstances, we find that the



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 9 of 14
       evidence supports the juvenile court’s conclusion that the coercive intervention

       of the court was necessary to ensure I.W.’s safety and well-being.


                                        II. Custody of E.W.
[12]   Next, Mother argues that the juvenile court erroneously awarded physical

       custody of E.W. to his father. In its order, the juvenile court entered findings of

       fact and conclusions of law. In reviewing the order, we first determine whether

       the evidence supports the findings; and second, whether the findings support

       the judgment. Harris v. Harris, 800 N.E.2d 930, 934-35 (Ind. Ct. App. 2003).

       We owe no deference to the juvenile court’s conclusions of law and will review

       those conclusions de novo. Id. at 935. We do, however, give “wide latitude

       and deference” to a juvenile court’s decision to modify custody. Collyear-Bell v.

       Bell, 105 N.E.3d 176, 183 (Ind. Ct. App. 2018).


[13]   Indiana Code section 31-17-2-21(a) provides that a court may not modify a

       child custody order unless (1) the modification is in the child’s best interests;

       and (2) there is a substantial change in one or more of the factors enumerated in

       Indiana Code section 31-17-2-8. That statute, in turn, provides in relevant part

       as follows:


               The court shall determine custody and enter a custody order in
               accordance with the best interests of the child. In determining the
               best interests of the child, there is no presumption favoring either
               parent. The court shall consider all relevant factors, including the
               following:


                       (1)      The age and sex of the child.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 10 of 14
                       (2)      The wishes of the child’s parent or parents.

                       (3)      The wishes of the child, with more consideration
                                given to the child’s wishes if the child is at least
                                fourteen (14) years of age.

                       (4)      The interaction and interrelationship of the child
                                with:

                                (A)     the child’s parent or parents;

                                (B)     the child’s sibling; and

                                (C)     any other person who may significantly affect
                                        the child’s best interests.

                       (5)      The child’s adjustment to the child’s:

                                (A)     home;

                                (B)     school; and

                                (C)     community.

                       (6)      The mental and physical health of all individuals
                                involved.

                       (7)      Evidence of a pattern of domestic or family violence
                                by either parent.


       I.C. § 31-17-2-8.


                                        A. Factual Findings
[14]   Mother first argues that the juvenile court made factual findings that are not

       supported by the evidence. First, the court found that “Mother inconsistently

       participated in the recommended referrals of the DCS.” Appellant’s App. Vol.

       II p. 38. We agree with Mother that the evidence does not support this finding.
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 11 of 14
       The record shows that Mother was participating with IOP, recovery services,

       visitation, random drug screens, individual therapy, and home-based case

       management. The State contends that the evidence shows that Mother had not

       yet sufficiently benefited from those services. That may be the case, but that is

       not what the juvenile court found. While we conclude that this finding is

       erroneous, that conclusion does not alter the result of this appeal.


[15]   Second, the court found that “[t]he DCS has not expressed any concerns about

       [E.W.’s] safety while in Father’s care.” Id. at 39. The FCM testified that the

       children reported that E.W.’s Father had struck them with a belt approximately

       five times, and the FCM then told E.W.’s Father that he needed to change the

       way he disciplined E.W.; Father agreed to make the change. While this was,

       indeed, an issue that had to be corrected, the FCM did not state that he had

       ongoing concerns about E.W.’s safety while in Father’s care. Likewise, while

       the FCM noted that the amount of food in the house was “appropriate, but . . .

       it could have been more,” tr. vol. I p. 86, he did not conclude that the issue rose

       to the level of a safety concern. Therefore, the evidence supports this finding.


[16]   Third, the court found that “Mother’s incarceration and failure to remedy the

       circumstances giving rise to the removal of the children from her home by

       maintaining stable housing and inconsistently maintaining sobriety represent a

       substantial and continuing change in circumstances which support a

       modification of custody.” Appellant’s App. Vol. II p. 40. Mother argues that

       her “conduct has been remedied” and that her inability to get housing is a result

       of the CHINS case. Appellant’s Br. p. 15. The record shows that Mother has

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 12 of 14
       absolutely made commendable progress and has had consistent and sincere

       participation with her court-ordered services. But it does not show that the

       underlying issues have been remedied; instead, it shows that there is more work

       to be done before either child can be placed safely into Mother’s unsupervised

       care and custody. Therefore, the evidence supports the factual portions of this

       finding.


                                           B. Best Interests
[17]   Finally, Mother argues that the juvenile court erred by finding that it is in

       E.W.’s best interests for his father to have primary physical custody. When

       reviewing a child’s best interests, the juvenile court must consider the factors

       enumerated above in Indiana Code section 31-17-2-8.


[18]   The evidence shows that E.W. has an affectionate relationship with Mother and

       a good relationship with his father. He is well adjusted to his father’s home and

       the school that he attends while living there. E.W. is bonded to Father’s

       girlfriend and her children. He is also bonded to I.W., and while it is

       unfortunate that the brothers have to be separated for now, E.W.’s Father and

       his girlfriend are committed to ensuring that the siblings can visit each other

       and maintain a relationship.


[19]   The record reveals that, while Mother is participating with all required services,

       she has not yet reached a point where E.W. is safe in her care. There is

       evidence of a pattern of domestic and family violence at her hands. There is

       also evidence of a serious substance abuse issue and mental health concerns that

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 13 of 14
       will need continued treatment before E.W. can be placed safely in her care and

       custody.


[20]   Under these circumstances, the evidence supports the juvenile court’s

       conclusion that, for now, it is in E.W.’s best interests that custody be modified.

       Mother’s arguments to the contrary amount to a request that we reweigh the

       evidence and second-guess the juvenile court’s assessment of witnesses, which

       we may not do. In the future, if Mother addresses her issues to a point at which

       she would be a safe and stable placement for E.W., the parties and the court

       can, of course, reconsider the custody arrangement.


[21]   The judgment of the juvenile court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019   Page 14 of 14
