MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Mar 17 2016, 6:51 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
Trenna S. Parker                                         Gregory F. Zoeller
Noblesville, Indiana                                     Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of J.F. (Minor                             March 17, 2016
Child,                                                   Court of Appeals Case No.
                                                         29A02-1508-JC-1306
And
                                                         Appeal from the Hamilton Circuit
L.F. (Mother),                                           Court
Appellant-Respondent,                                    The Honorable Paul A. Felix,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         29C01-1502-JC-196
The Indiana Department of
Child Services,
Appellee-Petitioner.




Riley, Judge.



Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016            Page 1 of 15
                                     STATEMENT OF THE CASE

[1]   Appellant-Respondent, L.F. (Mother), appeals the trial court’s order finding

      probable cause to exist that J.F. (Child) was a child in need of services

      (CHINS). 1


[2]   We affirm.


                                                        ISSUE

[3]   Mother raises one issue on appeal, which we restate as follows: Whether the

      trial court’s decision to adjudicate Child as a CHINS was supported by clear

      and convincing evidence.


                            FACTS AND PROCEDURAL HISTORY

[4]   Child was born to Mother and M.K. (Father) (collectively, Parents) on March

      16, 2005. Parents were never married, but continued to live together. Their

      family life was full of domestic violence and alcohol abuse incidents. Between

      2005 and 2015, law enforcement received 149 calls from Parents’ residence.

      Out of those, “146 [calls] were concerning domestic violence or domestic

      altercations.” (Transcript. p. 7). Both Parents had multiple arrests. Mother

      was arrested in September 2003 for public intoxication; in December 2003 for

      resisting law enforcement, disorderly conduct, and public intoxication; in April

      2006 for neglect of a dependent, maintaining a common nuisance, and




      1
       Child’s father did not contest the trial court’s adjudication of Child as a CHINS. He does not join this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016             Page 2 of 15
      possession of paraphernalia; and in June 2011 for operating a vehicle while

      intoxicated. Likewise, Father was arrested in April 2006 for neglect of a

      dependent, maintaining a common nuisance, and possession of paraphernalia;

      and for domestic batteries in March 2010, January 2011, and January 2015.

      Father’s domestic battery cases all involved battery against Mother.


[5]   On October 11, 2013, Parents’ neighbor called the police reporting that Child

      was at her residence and afraid to go home due to Parents’ alcohol abuse and

      physical confrontation. A police officer arrived to investigate the report and

      talked to Mother. He smelled alcohol on her breath and observed her eyes to be

      red and glassy; Mother registered a 0.14 BAC. After discussing the

      circumstances with a representative of the Department of Child Services (DCS),

      Parents agreed to let Child spend the night at the neighbor’s house until both

      Parents became sober. Parents also agreed to look into counseling services for

      Child and signed a safety plan to provide a safe environment for Child.


[6]   On February 10, 2014, Child called the police stating that she was afraid that

      her Mother “would beat her” because Parents were arguing and using profanity

      in her presence. (Appellant’s App. p. 75). This was the twenty-seventh call to

      the police from the family’s residence within the last twelve months. An officer

      was dispatched to assess the situation. He observed Mother to be disoriented

      and intoxicated. Mother informed the officer that she was suffering from

      bipolar disorder and schizophrenia. The officer contacted DCS, and once the

      DCS representative arrived, they walked into the house to interview Parents.

      Inside, the officer smelled the “odor of marijuana” and observed numerous

      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 3 of 15
      alcohol containers that were within Child’s reach, as well as food, clothes, and

      garbage scattered around the residence. (Appellant’s App. p. 75).


[7]   On January 7, 2015, at approximately 10 a.m., while Child was at school,

      Parents had a fight over a beer. Father punched Mother in the face and

      knocked her tooth out causing her to bleed from her mouth. Both Parents were

      drunk; Father registered a 0.165 BAC. Father was arrested and charged with

      domestic battery. Later, on March 5, 2015, Father pled guilty to domestic

      battery, a Level 6 felony, and was sentenced to 545 days at the Department of

      Correction with 385 days suspended to probation.


[8]   Two days later, on January 9, 2015, DCS received a report alleging that Child

      was a victim of neglect. The report included allegations of Parents’ domestic

      violence and alcohol abuse and Mother’s mental health which affected her

      ability to provide for Child’s needs and supervision. DCS Family Case

      Manager Marshall Despain (FCM Despain) attempted to contact Mother on

      several occasions, but she refused to cooperate and demanded that FCM

      Despain disclose the source of the report. On January 28, 2015, DCS received

      an additional report with the same allegations. FCM Despain again attempted

      to contact Mother several times, including two instances when FCM Despain

      arrived at Mother’s residence accompanied by police, but she remained hostile

      towards DCS. On February 13, 2015, FCM Despain contacted Father at the

      Hamilton County Jail. Father expressed his concerns regarding Mother’s

      mental health and how that could affect Child. Father stated that he was the

      primary caregiver for Child and Mother. He stated that Mother sleeps

      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 4 of 15
       extensively during the day because she experiences manic episodes during the

       night which causes her to become tired by the time Child needs to go to school

       or when Child returns from school.


[9]    Sometime in February 2015, Mother called the police and reported that there

       were “dust bunnies” jumping around inside her residence. (Tr. p. 112). She

       claimed the dust bunnies were living creatures. The police officers arrived and

       investigated the complaint but did not discover anything. Mother informed one

       of the officers that she stopped using her medication shortly prior to the

       incident. The officer observed Child sleeping in her bed at the time. In another

       similar instance, Mother called her sister, Geralyn Neu (Aunt Neu), asking for

       help. When Aunt Neu arrived at Mother’s residence, Mother was naked and

       “just rumbl[ed] through her belongings with really no sense of anything.” (Tr.

       p. 156). Mother informed Aunt Neu that she was not taking her medication

       and complained that her house was full of snakes, possums, and raccoons.


[10]   On February 16, 2015, DCS recommended filing of a CHINS petition

       providing the following reasoning:

               The consistent and escalating domestic violence/disputes
               between [Father] and [Mother] as documented by local law
               enforcement reports. Per review of law enforcement records for
               the past 10 years, 146 documented calls to the home of [Parents
               were] concerning domestic disputes and domestic violence. Per
               law enforcement reports, some of the incidents resulted in bodily
               injury to either or both [Father] and [Mother]. Per law
               enforcement reports, [Child] was present in the home during
               some of these altercations and [Father] was arrested for domestic
               battery 3 times. There are 4 prior DCS assessments concerning
       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 5 of 15
               similar allegations, which were all unsubstantiated. However,
               the documentation of each DCS report alleges escalating
               behaviors of domestic disputes and physical altercations between
               [Father] and [Mother] per each report. In addition to the law
               enforcement reports of domestic violence/disputes, there are
               reported concerns of [Parents] being impaired by their alcohol
               use. Both [Parents] were arrested in 2006 for Neglect of a
               Dependant (sic) concerning [Child]. FCM Despain has been
               unable to address the allegations with [Mother], as she refuses to
               communicate or consult regarding the child abuse/neglect
               allegations. In addition reported concerns of [Mother’s] mental
               health in regards to caring for [Child]; as documented by local
               law enforcement reports and [Father’s] interview. The consistent
               pattern of behaviors regarding escalating domestic violence and
               substance abuse by [Parents] as documented by local law
               enforcement reports is detrimental to the safety and well-being of
               [Child] without interventions and services by DCS.


       (Appellant’s App. p. 29).


[11]   On February 23, 2015, the trial court held a probable cause hearing to

       determine if probable cause existed to believe that Child was a CHINS, and to

       determine whether DCS should proceed with a CHINS petition. Mother

       initially appeared for the hearing but was asked to wait outside of the

       courtroom for another hearing to end. While waiting outside, FCM Despain

       explained to Mother the nature of the hearing and discussed DCS’s concerns in

       the matter. Then, Mother left and did not return. The trial court proceeded

       with the hearing in Mother’s absence. Father was present but he was in custody

       due to his arrest on January 7, 2015. At the conclusion of the hearing, the trial

       court advised the parties that there was probable cause and authorized DCS to


       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 6 of 15
       file a CHINS petition, which was subsequently filed on March 3, 2015. On

       March 5, 2015, the trial court held an initial hearing on the CHINS petition.


[12]   On April 14, 2015, DCS received a new call regarding Child. Child did not

       report to her school that morning but appeared later in the day. The school’s

       resource officer contacted DCS. A case manager interviewed Child in school

       and determined that she was not safe in Mother’s care. DCS removed Child

       from her home and placed her with Aunt Neu. The case manager attempted to

       talk to Mother, “[b]ut she was so mad and not really making sense.” (Tr. p.

       150). Mother was mocking the case manager, making demeaning expressions

       and tones of voice, and refusing to talk. The trial court held a detention hearing

       the next day, April 15, 2015, and made the following additional findings

       pertaining to Child’s removal:

               [On April 14, 2015], [Mother] was found in a state of
               intoxication and/or manifesting mental health disorders that
               make the continued residence of [Child] in [Mother’s] home
               contrary to the safety of [Child] and [Child’s] best interests. This
               includes being observed with slurred speech, incoherent speech,
               the smell of alcohol on [Mother’s] person, and the inability to
               recollect a conversation with a resource officer within hours of
               having that conversation. Additionally, [Mother] had
               determined to keep [Child] home from school despite [Child’s]
               determination to go to school, telling [Child] she would report
               [Child] as sick. [Child] was not sick and waited until [Mother]
               fell asleep before exiting the home and walking to school alone.
               This was done without adult supervision or [Mother’s]
               knowledge at a time other school children would not be going to
               school or expected to be walking to school. On [April 13, 2015],
               [Mother] drove [Child] to a gas station, while again exhibiting
               slurred speech and irate behavior associated with [Mother’s]
       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 7 of 15
               consumption of alcohol. [Mother] is verbally and emotionally
               abusive to [Child]. [Mother] fails to provide appropriate
               supervision over [Child]. [Mother] routinely sleeps long hours in
               the home without supervising [Child] and fails to provide food
               for [Child], leaving [Child] to fend for herself to be fed. On the
               day before the detention, [Child] had candy licorice for dinner.
               [Child] is fearful of remaining in the home. [Mother] has
               exhibited a pattern of substance abuse and lack of supervision
               over [Child] which makes continued residence in the care of
               [Mother] unsustainable at this time.


       (DCS App. pp. 9-10). From Child’s removal on April 14, 2015 until a hearing

       on April 27, 2015, Mother never requested parenting time with Child.


[13]   On April 27, 2015, the trial court held a fact-finding hearing. As to Father, who

       was represented by counsel at the hearing, the trial court adjudicated Child to

       be a CHINS based on Father’s agreement. The trial court continued the fact-

       finding hearing as to Mother, who did not appear in person but was represented

       by counsel. Mother’s counsel stated that she was concerned about Mother’s

       competency. Counsel was informed the morning of the hearing that Mother

       “had kind of a turn for the worse and has been in and out of the Community

       North Mental Health facility.” (Tr. p. 90). However, Mother’s counsel did not

       possess any additional information about Mother’s mental state or condition.

       During Aunt Neu’s testimony, the trial court learned that Mother had been

       involuntarily committed at a mental health facility the previous night. The trial

       court granted Mother’s motion for appointment of guardian ad litem and set an

       additional fact-finding hearing. The trial court held the additional hearing on

       May 28, 2015. At the conclusion of the additional hearing, the trial court

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 8 of 15
       advised Mother, who was in attendance, that based upon the evidence

       presented, the trial court was adjudicating Child to be a CHINS. On June 30,

       2015, the trial court entered its written CHINS adjudication order stating

               [Mother] has pled guilty to possession of paraphernalia on or
               about [July 5, 2007] and also to operating a motor vehicle while
               intoxicated on or about [November 16, 2011] for which she
               remained on probation until approximately [February 13, 2013].
               She was thereafter unsuccessfully discharged from probation.
               These convictions also demonstrate that [Mother] has ongoing
               and longstanding substance abuse issues that remain un-
               remedied as of the time of the conclusion of the fact-finding
               hearings held in this cause of action. [Mother] rejected multiple
               and repeated efforts by DCS personnel to work voluntarily on
               addressing her parenting deficiencies prior to an in-home CHINS
               proceeding being filed, which later became an [out-of-home]
               CHINS due to her impaired condition on [April 14, 2015]. Law
               enforcement has been to [Child’s] home extensively and
               [M]other is known by name to law enforcement officers due to
               the numerous calls to the home. Mother has been intoxicated on
               numerous occasions and/or suffering from mental health issues
               affecting her ability to care for [Child]. Mother has not
               voluntarily engaged in services offered by DCS without the
               coercive intervention of the court and such intervention is
               necessary for the protection and well-being of [Child].


       (DCS App. p. 13). On July 27, 2015, the trial court held a dispositional hearing

       and, on August 5, 2015, the trial court entered its dispositional decree ordering

       Parents to participate in reunification services.


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




       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 9 of 15
                                   DISCUSSION AND DECISION

                                         I. Finality of Appealed Order


[15]   Mother claims that the trial court erred in holding a probable cause hearing in

       her absence and finding that probable cause existed that Child was a CHINS.

       DCS, in turn, argues that this appeal should be dismissed because Mother failed

       to properly invoke our jurisdiction. DCS specifically asserts that the trial

       court’s probable cause order was not a final appealable order, and that Mother

       should have perfected her appeal and filed an interlocutory appeal pursuant to

       Ind. Appellate Rule 14. “Only after a dispositional hearing has been held is

       there a final, appealable order because the disposition finally determines the

       rights of the parties.” M.K. v. Ind. Dep’t of Child Servs., 964 N.E.2d 240, 244

       (Ind. Ct. App. 2012). However, because a dispositional hearing was conducted,

       and a final appealable judgment did exist in M.K., the M.K. court decided to

       address the appeal on its merits. Id. Here, likewise, the trial court conducted a

       dispositional hearing, and a final appealable judgment exists. As such, we will

       address this CHINS appeal on its merits.


                                           II. Sufficiency of Evidence


[16]   At the outset, we note that Mother argues that the trial court should not have

       conducted its probable cause hearing on February 23, 2015 because she arrived

       and checked in for the hearing but left the courtroom shortly thereafter and

       never returned. She claims that there was no urgency for the hearing because it

       was not a detention hearing, which could have justified the urgency. See Ind.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 10 of 15
       Code § 31-37-6-2. 2 However, Mother does not explain the reason why she left

       the hearing nor provides us with any authority to support her argument. See

       App. R. 46(A)(8) (failure to state a cogent argument results in its waiver on

       appeal). Further, on March 5, 2015, at the initial hearing on DCS’s CHINS

       petition, Mother admitted that it was her “fault” that she did not stay for the

       probable cause hearing. (Tr. p. 42). As such, we hold that the trial court did

       not err in conducting the probable cause hearing in Mother’s absence. See I.C. §

       31-32-5-7 (a parent waives her right to be present at any hearing concerning her

       child by failing to appear after lawful notice).


[17]   Indiana courts recognize that parents have a fundamental right to raise their

       children without undue influence from the State, but that right is limited by the

       State’s compelling interest in protecting the welfare of children. In re Ju.L., 952

       N.E.2d 771, 776 (Ind. Ct. App. 2011). A CHINS proceeding is a civil action in

       which the State bears the burden of proving by a preponderance of the evidence

       that a child meets the statutory definition of a CHINS. In re N.E., 919 N.E.2d

       102, 105 (Ind. 2010); I.C. § 31–34–12–3. Pursuant to Indiana Code section 31–

       34–1–1, the State must prove that the child is under the age of eighteen and that

                  (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




       2
           When asserting this argument, Mother incorrectly cites to Ind. Code section 31-35-5-1.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016        Page 11 of 15
                   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.


[18]   A CHINS adjudication focuses on the condition of the child. In re N.E., 919

       N.E.2d 102, 105 (Ind. 2010). A CHINS adjudication does not establish

       culpability on the part of a particular parent. Id. Stated differently, the purpose

       of a CHINS adjudication is to protect children, not punish parents. Id. at 106.

       Our supreme court has noted that the fact that a child’s needs are unlikely to be

       met without coercive intervention is perhaps the most critical of the

       considerations when determining whether the State’s intrusion into the

       ordinarily private sphere of the family is warranted. In re S.D., 2 N.E.3d 1283,

       1287 (Ind. 2014).


[19]   When reviewing the sufficiency of the evidence to support a CHINS

       adjudication, we will not reweigh the evidence or judge witness credibility. In

       re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). We will consider only the evidence

       favorable to the trial court’s judgment and the reasonable inferences drawn

       therefrom. Id. Moreover, because the trial court entered findings of fact and

       conclusions thereon pursuant to Ind. Trial Rule 52(A), we may not set aside the

       findings or judgment unless they are clearly erroneous. See T.R. 52(A). We

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 12 of 15
       apply the two-tiered standard of whether the evidence supports the findings and

       whether the findings support the judgment. S.D., 2 N.E.3d at 1287. Findings

       are clearly erroneous only when the record contains no facts to support them

       either directly or by inference. C.B. v. B.W., 985 N.E.2d 340, 344 (Ind. Ct. App.

       2013), trans. denied. A judgment is clearly erroneous if it relies on an incorrect

       legal standard. Id. While we defer substantially to findings of fact, we do not

       do so to conclusions of law. Id.


[20]   On appeal, Mother asserts that the trial court erred in finding that Child’s

       physical or mental condition was seriously endangered. In support, Mother

       maintains that Child was not present during Parents’ last physical altercation;

       Mother was the actual victim of the incident; all four prior assessments cited by

       DCS were not substantiated; no testimony was presented to support 146 calls

       related to domestic violence in their home; no evidence was presented as to

       Mother’s intoxication on the day of the last altercation; no evidence was shown

       as to Mother’s mental health condition; no evidence was presented to prove

       that Mother’s mental illness interfered with her ability to effectively parent

       Child; and Mother was not required to cooperate with DCS. Each of these

       assertions, however, ignores the evidence most favorable to the trial court’s

       determination and, instead, amounts to a request for this court to reweigh the

       evidence, which we will not do. See In re Des.B., 2 N.E.3d 828, 838 (Ind. Ct.

       App. 2014).


[21]   Our review of the record, in light most favorable to the trial court’s decision,

       indicates that the facts presented to and relied on by the trial court support the

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 13 of 15
       trial court’s adjudication of Child as a CHINS. Specifically, Mother has

       ongoing and longstanding substance abuse issues. She previously pled guilty to

       possession of paraphernalia and operating a motor vehicle while intoxicated.

       She failed to address, seek appropriate help, and control her substance abuse

       issues. Parents’ substance abuse issues resulted in numerous domestic violence

       incidents involving profanity, physical altercations, and law enforcement

       interventions. In fact, law enforcement received 146 calls related to domestic

       violence incidents from the family’s residence. The police officers knew Mother

       by name. At least one of these calls was placed by Child out of fear of being

       physically harmed. Another call was made by the family’s neighbor who

       hosted Child because Child was afraid to go home.


[22]   In addition, Mother has mental health issues. She failed to attend one of her

       hearings due to her involuntary admission into a mental health facility. On one

       occasion, Mother admitted to a police officer that she was not taking her

       medication and she suffered from “bipolar disorder and schizophrenia.”

       (Appellant’s App. p. 75; Tr. p. 110). On another occasion, Mother saw “dust

       bunnies” in her residence and summoned law enforcement for help. (Tr. p.

       112). Likewise, Aunt Neu testified that Mother was not taking her medication,

       hallucinated, and saw “snakes[,] possums[,] and all kind of raccoons” in her

       house. (Tr. p. 158). When Aunt Neu arrived, Mother was “naked, just

       rumbling through her belongings with really no sense of anything.” (Tr. p.

       156). Nonetheless, Mother failed to adequately address her mental health

       issues. Rather, she insists that these issues do not interfere with her parenting


       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 14 of 15
       ability, yet her ten-year-old Child is left to fend for herself, eat Twizzlers for

       dinner, prepare for school, argue with Mother that she needs to go to school,

       run away to neighbors to seek safety, call the police in fear of Mother’s

       outbursts, and generally experience domestic violence and substance abuse in

       her home. The trial court is not required to “wait until a tragedy occurs to

       intervene.” In re Des.B., 2 N.E.3d at 838. As such, based on the evidence and

       our standard of review, we cannot say that the trial court’s conclusion that the

       coercive intervention of the court was necessary is clearly erroneous.


                                               CONCLUSION

[23]   Based on the foregoing, we hold that sufficient evidence supports the trial

       court’s findings, and those findings support the trial court’s CHINS

       adjudication.


[24]   Affirmed.


[25]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-JC-1306 | March 17, 2016   Page 15 of 15
