MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Aug 05 2016, 6:55 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Paula M. Sauer                                           Gregory F. Zoeller
Danville, Indiana                                        Attorney General of Indiana

                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        August 5, 2016
A.C. (Child Alleged to be in                             Court of Appeals Case No.
Need of Services) and K.R.                               32A04-1601-JC-123
(Mother);                                                Appeal from the Hendricks
                                                         Superior Court
K.R. (Mother),                                           The Honorable Karen M. Love,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause No.
        v.                                               32D03-1506-JC-57

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016         Page 1 of 10
      May, Judge.


[1]   K.R. (Mother) appeals A.C.’s (Child’s) adjudication as a Child in Need of

      Services (CHINS). She argues the Department of Child Services (DCS) did not

      present sufficient evidence to permit the adjudication. We affirm.



                               Facts and Procedural History
[2]   Child was born on January 16, 2015, to Mother and H.C. (Father) 1 (collectively

      Parents), who are not married. On June 22, 2015, DCS responded to a report

      Mother walked with Child to a local gas station “in 90˚ heat,” (App. at 36),

      after arguing with Father and Paternal Grandmother and indicated she had no

      place to go. DCS helped Mother and Child find alternate housing in a shelter

      that day, and Mother and Child resided there during the proceedings.


[3]   On June 25, 2015, DCS filed a petition alleging Child was a CHINS due to

      Parents’ inability to provide for Child’s basic needs. On August 12 and

      September 16, the juvenile court held fact-finding hearings on the CHINS

      petition. On November 3, 2015, the juvenile court adjudicated Child as a

      CHINS. On December 2, 2015, the juvenile court held a dispositional hearing

      and entered a dispositional order requiring Parents to participate in services and

      granting wardship of Child to DCS.




      1
          Father does not appeal the CHINS adjudication.


      Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016   Page 2 of 10
                                 Discussion and Decision
[4]   A CHINS proceeding is civil in nature, so DCS 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). Ind. Code § 31-34-1-1 states:


              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.


      A CHINS adjudication “focuses on the condition of the child,” and not the

      culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding

      a child to be a CHINS is to provide proper services for the benefit of the child,

      not to punish the parent. Id. at 106.


[5]   When a juvenile court enters findings of fact and conclusions of law in a

      CHINS decision, we apply a two-tiered review. Parmeter v. Cass Cnty. DCS, 878

      N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first consider whether

      Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016   Page 3 of 10
      the evidence supports the findings and then whether the findings support the

      judgment. Id. We may not set aside the findings or judgment unless they are

      clearly erroneous. Id. Findings are clearly erroneous when the record contains

      no facts to support them either directly or by inference, and a judgment is

      clearly erroneous if it relies on an incorrect legal standard. Id. We give due

      regard to the juvenile court’s ability to assess witness credibility and we do not

      reweigh the evidence; we instead consider the evidence most favorable to the

      judgment with all reasonable inferences drawn in favor of the judgment. Id. We

      defer substantially to findings of fact, but not to conclusions of law. Id.


[6]   Mother challenges many of the juvenile court’s findings and argues DCS did

      not present sufficient evidence to support those findings. It did.


                                     I. Mother’s Housing Instability

[7]   Regarding Mother’s housing situation, Mother argues the evidence does not

      support Finding 23 which states:

              23. Mother advised [FCM] Ms[.] Ash that her father was on
              disability for his mental health issues. As this case has
              progressed Mother has never come up with another place to stay
              with [Child] other than with her mentally ill father in
              Pennsylvania or the shelter arranged by DCS. Ms[.] Ash did a
              back ground [sic] check on [Child’s] maternal grandfather and
              did not believe living with him would be appropriate for [Child].


      (App. at 37.) Based thereon, the juvenile court concluded Mother “did not

      have the ability to provide [Child] with the necessary . . . shelter.” (Id. at 39.)



      Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016   Page 4 of 10
[8]   Mother claims she was “weighing various options, such as moving into

      independent housing with Father or moving to Pennsylvania where her family

      resided.” (Br. of Appellant at 8.) She asserts her inability to secure housing

      does not, in itself, support the juvenile court’s conclusion Child is a CHINS. In

      support of her argument, Mother cites In re S.M., 45 N.E.3d 1252, 1256 (Ind.

      Ct. App. 2015), where we said, “[e]ven the mere fact of a family living in a

      shelter while seeking stable housing does not make a CHINS.” However, the

      facts in In re S.M. are different from those in this case, as the children in In re

      S.M. “have always had a home[.]” Id. at 1254. Here, not only does Mother not

      have stable housing, there are other factors that support Child’s adjudication as

      a CHINS, as will be discussed further in this opinion. Mother’s argument is an

      invitation for us to reweigh the evidence, which we cannot do. See Parmeter,

      878 N.E.2d at 450 (appellate court cannot reweigh evidence or judge the

      credibility of witnesses).


                                 II. Mother’s Ability to Care for Child

[9]   Mother argues DCS did not present sufficient evidence to support the juvenile

      court’s findings regarding Mother’s ability to care for Child. The juvenile court

      found:

              6. DCS reveived [sic] two reports re: [Child]. On 6/19/15 DCS
              received a report alleging the parents were unable to financially
              care for [Child], that [Child] had not received all of her well baby
              checks and the parents argued a lot.




      Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016   Page 5 of 10
        7. On 6/22/2015 DCS received a second report that Mother and
        [Child] were at a local gas station in 90˚ heat, they had been
        kicked out of their home and had no place to go.


                                              *****


        9. After [Child’s] birth[,] Father, Mother, and [Child] lived with
        [Paternal Grandmother] in her home. [Paternal Grandmother]
        works and she financially supported Father, Mother and [Child].
        Neither parent worked prior to 6/22/2015.


                                              *****


        11. FCM Ash explained why [Mother and Child] were at the gas
        station. Mother admitted she and [Child] had been living in
        [Paternal Grandmother’s] home with Father, Father’s brother
        and step father. Mother admitted that she and [Paternal
        Grandmother] argued, shoved each other on 6/22/2015 and
        Mother left with [Child] and Mother walked to the gas station
        with [Child], Mother admitted she and [Child] had nowhere to
        go. Mother had contacted her own father who lives in
        Pennsylvania and he could not come and get Mother and
        [Child].


        12. Father came to the gas station and later [Paternal
        Grandmother] came to the gas station. Father admitted that he
        and Mother cannot financially take care of [Child] and that he
        was too depressed to actually provide hands on care for [Child].
        Father and [Paternal Grandmother] were concerned that
        [M]other and [Child] were out in the heat.


                                              *****




Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016   Page 6 of 10
        16. [Paternal Grandmother] often prompted Mother to make
        appointment[s] with [Child’s] doctor for checkups and offered to
        take Mother and [Child] to the appointments. Sometimes
        Mother followed through and [Paternal Grandmother] drove
        Mother and [Child] to her doctor appointments. Prior to DCS
        involvement [Child] had not been to all of the normal and
        customary “well baby check up[s]” with her doctor.


                                              *****


        28. On two separate occasions [Child] had blood on her nose
        which was concerning. Mother claimed she had used a QTIP
        [sic] to clean [Child’s] nose. Mother’s explanation does not
        make sense. It is not safe to clean an infant’s nose with a QTIP
        [sic] to the point the infant’s nose bleeds.
        On another occasion [Child] had a severe diaper rash with
        redness and sores, and Father was very upset when [he] observed
        [Child’s] condition during his parenting time. Father called
        Mother and Mother said she didn’t have any wipes. Father
        wanted to take [Child] to the emergency room. Ms[.] Joyti [the
        home based case manager who supervised Father’s visitation]
        encouraged Father to call [Child’s] doctor. Father called FCM
        Ash and told her about [Child’s] rash. [Child] was taken to the
        doctor [and] it [was] determined the rash was caused because
        [Child] was left in a saturated diaper for extended periods of
        time. Doctor recommended diaper be changed more frequently,
        use a diaper crème [sic] and changes to the baby’s diet ie: [sic] no
        cow[’]s milk. Mother had been giving the baby 2% cow’s milk
        instead of formula.


        29. FCM Ash has had multiple discussions with Mother about
        the proper care of [Child’s] formula. On 6/22/2015, 6/23/2015,
        6/24/2015, 6/30/15 and 7/1/2016 Ms[.] Ash has had to remind
        Mother that she must refrigerate [Child’s] bottles if she makes
        formual [sic] ahead. Mother insists on making formula in the
        morning and feeding [Child] that bottle throughout the day and
Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016   Page 7 of 10
        leaving the bottle out in the heat. FCM Pitzer has also observed
        this problem and discussed the issue with Mother.


                                              *****


        31. FCN [sic] Pitzer has received several emails from Father
        upset about Mother’s lack of care for [Child]. The week prior to
        the fact finding hearing [Child] fell off the bed twice while in
        Mother’s care. On 9/5/2015 FCM observed the child and did
        not see any marks or bruises. Mother told FCM Pitzer that
        [Child] fell into a pile of clothes on the floor. When Ms[.] Ptizer
        saw the condition of the room she was concerned [Child] could
        suffocate when she fell especially given Mother’s admission that
        she was arguing with her roommate when [Child] fell.


        32. FCM Pitzer has observed [Child] with diapers so full that
        feces were on the child’s clothes. When Ms[.] Pitzer prompted
        Mother to change the diaper Mother merely said she had no
        wipes. FMC Pitzer explained to Mother that she could use a
        clean wash cloth to clean [Child]. FCM Pitzer has observed
        redness and sores on [Child] due to her Mother’s lack of proper
        hygiene for [Child].


        33. DCS has referred Mother for parenting classes and Mother is
        participating but her ongoing care of [Child] is not improving.
        Mother continues to leave the child in saturated and soiled
        diapers for extended periods. [Child] has re occurring [sic] sores
        and extreme diaper rash. Without the extensive supervision [of]
        FCM Ash and FCM Pitzer the diaper rash could become even
        worse leading to infection and could endanger [Child’s] physical
        health.


                                              *****



Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016   Page 8 of 10
               37. Mother gets into arguments everywhere she goes. Mother
               argues with Father, with [Paternal Grandmother], and with her
               roommate at the shelter. Mother is focused on arguing with
               others[,] not on [Child]. Nothing has been accomplished despite
               the referrals for parenting skills for Mother and the intensive
               supervision by the family case managers assigned to this child.
               Mother has “accepted” parenting skills training but she is merely
               going through the motions. The coercive intervention of the
               court is necessary for Mother to actively engage in services in
               order to meet [Child’s] needs.


       (App. at 36-39.)


[10]   Regarding these specific findings, DCS presented evidence Child had missed at

       least one “well baby” appointment, Mother lived with Paternal Grandmother,

       and Mother did not have a source of income. Mother admitted she walked

       with Child to a gas station near Paternal Grandmother’s house on a hot day

       and indicated to someone therein that she did not have anywhere to go. DCS

       presented evidence Child had severe diaper rash on multiple occasions and the

       rash was observed by multiple people, the diaper rash required medical

       attention, and Mother admitted she did not regularly change Child’s diaper,

       which resulted in the severe rash. DCS presented testimony indicating Mother

       fed Child cow’s milk against the recommendation of a doctor and would mix

       Child’s formula bottles in the morning and, without refrigerating them, feed

       them to Child throughout the day. Finally, DCS presented information Mother

       was argumentative with multiple people, often to the detriment of Child,

       including an incident in which Child fell from a bed into a pile of clothes while

       Mother argued with her roommate. Mother’s alternate version of facts and

       Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016   Page 9 of 10
       excuses for her actions are invitations for us to reweigh the evidence, which we

       cannot do.2 See Parmeter, 878 N.E.2d at 450 (appellate court cannot reweigh

       evidence or judge the credibility of witnesses). The evidence in the record

       supports the court’s findings regarding Mother’s inability to care for Child. 3



                                                  Conclusion
[11]   DCS presented sufficient evidence to support the juvenile court’s findings and

       those findings supported its conclusion Child was a CHINS. Accordingly, we

       affirm.


[12]   Affirmed.


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




       2
         Mother also contends, because the evidence does not support the findings, the juvenile court erred when it
       concluded Child was “seriously impaired or endangered” as a result of Mother’s actions. As we determine
       DCS presented sufficient evidence to support the juvenile court’s findings, the trial court did not err when it
       concluded Child was a CHINS. See In re A.H., 913 N.E.2d 303, 311 (Ind. Ct. App. 2009) (holding evidence
       similar to the case before us, including feeding infant cow’s milk, not changing infant’s diaper regularly, and
       not taking infant to the doctor, warranted a CHINS adjudication).
       3
        Mother also challenges findings regarding Father, who does not participate in this appeal. The parties are
       at odds regarding the issue of Mother’s standing to contest findings regarding Father. As we determine DCS
       presented sufficient evidence independent of the findings regarding Father, we need not address the issues
       surrounding them.

       Court of Appeals of Indiana | Memorandum Decision 32A04-1601-JC-123 | August 5, 2016              Page 10 of 10
