MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                 Jun 28 2016, 8:43 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
Danielle L. Gregory                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        June 28, 2016
J.L. and L.L.,                                           Court of Appeals Case No.
                                                         49A02-1511-JC-2017
Children in Need of Services,
                                                         Appeal from the Marion Superior
                                                         Court
Q.L.
                                                         The Honorable Marilyn Moores,
Appellant-Respondent,                                    Judge

        v.                                               The Honorable Beth Jansen,
                                                         Magistrate

The Indiana Department of                                Trial Court Cause Nos.
                                                         49D09-1508-JC-2440
Child Services,                                          49D09-1508-JC-2441
Appellee-Petitioner.



Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016          Page 1 of 15
                                             Case Summary
[1]   Q.L. (“Mother”) appeals the trial court’s order adjudicating twins J.L. and L.L.

      (collectively, “Children”) as Children in Need of Services (“CHINS”). She

      presents the sole issue of whether the court’s findings of fact and conclusions

      thereon are clearly erroneous. We affirm.



                              Facts and Procedural History
[2]   Mother gave birth to Children in fall 2009 in her hometown of Kalamazoo,

      Michigan.1 Children were born prematurely and hospitalized for several days.

      J.L. had clubfoot, and L.L. had a kidney disorder. Over the years, physicians at

      several Michigan hospitals and medical facilities saw Children for various

      conditions. Michigan Child Protective Services (“CPS”) became involved

      when Children were born, but Children were not permanently removed from

      Mother’s care. Mother has had “a lot of CPS history” since Children’s birth.

      (Tr. 89.)


[3]   Sometime in 2011, Mother and Children lived in Detroit with a man named

      Johnny Sims (“Sims”), who Mother presented to Children as their father.2 In




      1
        Mother has two other children: W.L., born in 2004 when Mother was a minor, and D.L., born in 2014.
      Neither child is involved in this case. However, shortly after his birth, Mother brought W.L. to Indianapolis,
      and Mother and W.L. became wards of the State of Indiana. W.L. was placed in foster care while Mother
      resided in behavioral healthcare facilities and group homes. Eventually Mother’s parental rights were
      terminated, and W.L. was adopted. Mother returned to Michigan.
      2
        Children’s biological father is not involved in their lives, and DCS could not locate him. He is not a party
      to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016               Page 2 of 15
      2011, Mother and Sims were involved in a domestic violence incident, after

      which Sims locked Mother and Children in a bedroom for a few days. Mother

      and Children then moved back to Kalamazoo. In spring 2015, J.L. attempted

      suicide at school, which Mother believed was due to J.L.’s strained relationship

      with Sims. (App. 42-44.) Mother has maintained contact with Sims.


[4]   In July 2015, Mother and Children traveled to Indianapolis to visit Mother’s

      friends. On August 11, 2015, James Mohr (“Mohr”), a property manager at an

      Indianapolis apartment complex, was checking the swimming pool area for

      unauthorized guests when he saw J.L. curled in a fetal position at the bottom of

      the pool’s deep end. J.L. was not moving and no one appeared to be

      supervising him, so Mohr dove in, pulled J.L. out, and began resuscitation

      efforts. A bystander called 9-1-1. Mother, who was not present when Mohr

      rescued J.L., returned to the pool around the time the paramedics arrived. J.L.

      was taken to Riley Hospital to recover.


[5]   The Marion County Department of Child Services (“DCS”) was called to the

      hospital to investigate. Family Case Manager Olyvia Hoff (“FCM Hoff”) of the

      fatality and near fatality team interviewed Mother and Children. She also

      spoke with Mother’s Michigan CPS caseworker and hospital staff in

      Indianapolis and Michigan. Riley Hospital staff members expressed concerns

      for Mother’s current mental health. Mother has a history of mental health

      diagnoses, including depression, anxiety, and bipolar disorder. FCM Hoff

      removed Children from Mother’s care due to instability in housing and income,



      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 3 of 15
      concerns about Mother’s mental health, and the lack of supervision leading to

      J.L.’s near-drowning.


[6]   On August 14, 2015, DCS filed a verified petition alleging that Children were

      CHINS. (App. 32.) The court held a fact-finding hearing on October 2, 2015.

      On October 28, 2015, the trial court entered written findings of fact and

      conclusions thereon and granted the petition. (App. 93.) The court ordered

      Mother to participate in home-based case management, complete parenting and

      mental health assessments, and follow all recommendations. (App. 99.)


[7]   Mother now appeals the trial court’s determination that Children are CHINS.



                                 Discussion and Decision
[8]   For the trial court to adjudicate a child a CHINS, DCS must prove three

      elements: (1) the child is under the age of eighteen; (2) one of eleven statutory

      circumstances – codified in Indiana Code sections 31-34-1-1 to -11 – exist that

      would make the child a CHINS; and (3) the child needs care, treatment, or

      rehabilitation that he or she is not receiving and that is unlikely to be provided

      or accepted without the coercive intervention of the court. In re K.D., 962

      N.E.2d 1249, 1253 (Ind. 2012) (citing In re. N.E., 919 N.E.2d 102, 105 (Ind.

      2010)). “The CHINS statute is intended to protect children who are

      ‘endangered by parental action or inaction’; a court need not ‘wait until a

      tragedy occurs to intervene.’” In re S.A., 15 N.E.3d 602, 608 (Ind. Ct. App.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 4 of 15
       2014) (quoting In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009)), trans.

       denied.


[9]    A CHINS proceeding is a civil action, and thus the State must prove by a

       preponderance of the evidence that a child is a CHINS. In re. N.E., 919 N.E.2d

       at 105 (citing Ind. Code § 31-34-12-3). In reviewing a CHINS adjudication, we

       neither reweigh the evidence nor judge the credibility of the witnesses. In re

       K.D., 962 N.E.2d at 1253. We consider only the evidence that supports the

       court’s decision and the reasonable inferences drawn therefrom. Id.


[10]   The trial court entered findings of fact and conclusions thereon, and thus our

       review is governed by Indiana Trial Rule 52(A). In re S.A., 15 N.E.3d at 607.

       We apply a two-tiered standard of review: first we consider whether the

       evidence supports the factual findings, and then whether those findings support

       the court’s judgment. Id. We will not set aside the findings or judgment unless

       they are clearly erroneous. Id. Findings of fact are clearly erroneous when

       there are no facts in the record to support them. Id. A judgment is clearly

       erroneous if it relies on an incorrect legal standard. Id. “We accord substantial

       deference to the trial court’s findings of fact but not to its conclusions of law.”

       Id.


[11]   No statute expressly requires formal findings in a CHINS fact-finding order. In

       re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). Where, as here, a trial court enters

       findings and conclusions on its own motion, we apply the two-tiered standard

       of review to the issues covered by the findings. Id. However, we review all


       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 5 of 15
       remaining issues under the general judgment standard, under which a judgment

       may be affirmed on any legal theory supported by the evidence. Id.


                                                Findings of Fact

[12]   Mother challenges fourteen of the trial court’s factual findings, arguing that

       they are not supported by the evidence.


[13]   First Mother challenges the court’s finding that she has been “somewhat

       transient and has been living in many different places after she was no longer a

       ward of Marion County DCS.” (App. 94.) DCS presented evidence that

       Mother lived with her Mother, Father, other relatives, and Sims at different

       times and in different cities over the years, primarily in Michigan. At the time

       DCS became involved with Children, Mother had been “staying” in

       Indianapolis for over a month (Tr. 57) and planned to travel to Memphis in the

       future. The court’s finding that Mother’s housing was “somewhat transient”

       was supported by the evidence.


[14]   Mother then challenges several of the court’s findings related to domestic

       violence and its impact on Children. Specifically, she disagrees with the court’s

       characterization of her as “a victim and an aggressor of domestic violence”

       (App. 94) and the court’s findings that (1) she lacks insight into the damaging

       effects of domestic violence on children, (2) she expressed a desire to move back

       in with Sims, and (3) she continues to struggle with domestic violence.


[15]   At the fact-finding hearing, Mother described a domestic violence incident in

       which she hit Sims in the face after he threw a cup of ice at her. (Tr. 36-37.)

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 6 of 15
       She also stated that he attempted to “play wrestle” with her, but she seriously

       fought back when her “motherly instinct kicked in that hey, you’ve got to fight

       for your life.” (Tr. 37.) Afterwards, Sims locked Mother and Children in an

       upstairs room for a few days. (Tr. 37.) In 2015, J.L. attempted suicide at

       school, which Mother believed was a result of his relationship with Sims.

       Mother has continued to see Sims since the domestic violence incident, drives a

       van provided by Sims, referred to Sims as Children’s father during the fact-

       finding hearing, and last had a romantic encounter with Sims in late 2014. As

       to Mother’s future plans to live with Sims, she testified “I haven’t chose [sic] to

       move back in yet.” (Tr. 42.) We cannot say the trial court’s findings about the

       domestic violence component of Mother’s seemingly-ongoing relationship with

       Sims and about her understanding of the impact of domestic violence on

       Children were clearly erroneous.


[16]   Mother also challenges the court’s finding that she “lacks an understanding of

       boundary issues in that she misconstrues relationships and constantly embraces

       new men into her life.” (App. 94.) Mother testified that she came to

       Indianapolis to visit friends she made “from being a ward of the State and the

       different facilities and nurses and doctors there.” (Tr. 51.) Mother also testified

       about several relationships with men over the years, including Children’s

       biological father, Sims, D.L.’s father, a “gentleman friend” Mother was visiting

       when J.L. nearly drowned (Tr. 55), and a man who had apparently rented her

       an apartment in Memphis. We think the court’s finding about Mother’s




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 7 of 15
       friendships and relationships was a reasonable inference to draw from Mother’s

       testimony; therefore, the finding was supported by the evidence.


[17]   Mother next challenges the trial court’s finding that she “acknowledges that she

       was not in the pool area when her son almost drowned and she continues to

       demonstrate an inability to know what is good for her children.” (App. 94.) At

       the fact-finding hearing, Mother testified that she let Children into the pool

       area, realized that she had forgotten towels, and left the pool area while

       Children were inside. (Tr. 56-57.) Mohr testified that no one appeared to be

       supervising J.L. when he first noticed J.L. at the bottom of the pool. The trial

       court’s finding that Mother was not in the pool area and inadequately

       supervised Children is supported by the evidence.


[18]   Mother also challenges the court’s finding that she is not taking medication for

       her mental health diagnoses, including depression, anxiety, and bipolar

       disorder. (App. 94.) Mother testified that she had a current prescription for

       Vistaril to take “as needed.” (Tr. 66.) The trial court questioned Mother about

       taking prescribed medication:


               THE COURT:                …So, are you currently taking meds for your
                                         mental health diagnosis or not?

               [MOTHER]:                 No.

               THE COURT:                Did you take a pill today?

               [MOTHER]:                 No.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 8 of 15
       (Tr. 60.) The court’s finding that mother is not taking medication for her

       mental health diagnosis is supported by the evidence.


[19]   Mother next challenges the court’s finding that she is “unable/unwilling to

       meet [Children’s special and developmental] needs and even basic needs as a

       result of her own chaotic life.” (App. 94.) Mother testified at length about

       Children’s special needs and the various service providers involved in

       Children’s care. However, Mother also explained that Children’s doctors in

       Michigan stopped providing them with care after Mother and Children failed to

       show up for medical appointments. (Tr. 30-31.) Children’s foster mother in

       Indiana reported that K.L. was diagnosed with asthma at an initial doctor’s

       visit and was wetting the bed. The doctor referred K.L. to a urology specialist.

       Children’s foster mother also sought counseling and educational assistance for

       K.L. due to K.L.’s behavior at home and school. Despite Mother’s testimony

       that she came to Indianapolis to get second opinions on Children’s medical

       needs, she did not do so during the month she had been in Indianapolis.

       Mother has moved between several family members’ homes during Children’s

       short life, creating instability in Children’s lives and disrupting their access to

       care. The trial court’s finding that, due to Mother’s instability, Mother was

       either unable or unwilling to provide Children with appropriate care to meet

       their special and basic needs was supported by the evidence.


[20]   Mother also challenges the court’s finding that “Mother has only seen

       [Children] three times since the inception of this matter and the Court finds that

       she does not make her children a priority even though she acknowledges living

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 9 of 15
       in a local hotel for the past few weeks.” (App. 94-95.) DCS removed Children

       on August 12, 2015. Mother then returned to Michigan, but came back to

       Indianapolis for a mediation on September 15. At the October 2, 2015 fact-

       finding hearing, Mother stated that she had been staying in a local hotel since

       September 15. Mother testified that she had seen Children three times during

       the seven weeks they had been removed. Based on this testimony, the trial

       court’s finding that Mother had not prioritized visitation with her Children was

       not clearly erroneous.


[21]   The trial court found that DCS removed Children due to Mother’s “mental

       health as indicated in medical records and by Riley [Hospital] Staff; instability

       of living situation as verified by Mother herself and a lack of supervision which

       resulted in her child nearly drowning.” (App. 95.) Mother argues this finding

       is unsupported by the evidence because DCS’s allegations contained in the

       CHINS petition were not admitted into evidence. However, FCM Hoff

       testified about the reasons for Children’s removal (Tr. 90-91), and the court’s

       finding is supported by FCM Hoff’s testimony.


[22]   Mother then challenges the trial court’s finding that Children’s caseworker “has

       seen a need for continuing involvement and coercive intervention of the Court.”

       (App. 95.) The parties agree that the caseworker did not explicitly testify about

       a continued need for involvement or coercive court intervention, although she

       testified about DCS’s recommended services. Nevertheless, a finding that

       merely recites the substance of witness testimony is not a finding of fact. Parks

       v. Del. Cnty. Dep’t of Child Servs., 862 N.E.2d 1275, 1279 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 10 of 15
       The trier of fact must adopt the witness testimony before a “finding” is

       considered a finding of fact. Id. The inclusion of statements that are not

       findings should be considered “mere surplusage.” Id. (quoting Perez v. U.S. Steel

       Corp., 426 N.E.2d 29, 33 (Ind. 1981)). Thus, to the extent the trial court

       misstated the caseworker’s testimony, the misstatement is harmless error

       because the trial court did not adopt the caseworker’s testimony as fact.


[23]   Mother also argues that the trial court erred in finding that Mother needs

       services to maintain her mental health and address parenting and domestic

       violence issues. Mother argues that the finding was erroneous because Mother

       was already receiving mental health services in Michigan, was involved with

       Michigan CPS, and testified that she would re-engage with services when she

       returned there. In other words, Mother argues that she does not need services

       because she could access them in another state. As the State points out,

       “Mother’s own argument acknowledges her need for services.” (Appellee’s Br.

       30.) Moreover, the evidence establishes that Mother has a mental health

       diagnosis for which she is not taking prescribed medication, failed to supervise

       Children (leading to J.L.’s near drowning), and appears to maintain a

       relationship with a man with whom she has a history of domestic violence and

       whose involvement in J.L.’s life apparently led to J.L.’s suicide attempt. The

       evidence thus supports the trial court’s finding that Mother needs services to

       address mental health, parenting, and domestic violence issues.


[24]   Finally, Mother challenges two of the court’s findings concerning her other

       children not involved in this case. As to W.L., she argues there was no

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 11 of 15
       evidence that he was adopted while she was a ward. W.L.’s adoption date is

       not in the record. However, Mother testified: “They just took my baby and I

       was still left as a ward of the State.” (Tr. 17.) Mother’s testimony appears to

       support the court’s finding. As to D.L., Mother argues that no evidence

       establishes that he has been adopted. Indeed, Mother testified only that she

       intended to place D.L. for adoption, D.L. was currently in her sister’s care in

       Michigan, and her sister had “power of attorney” for the child. (Tr. 49.) The

       court’s finding about D.L.’s adoption status is not supported by the evidence;

       however, the error is harmless because the record substantially supports the

       crucial part of the factual finding: that D.L. is in his aunt’s care. Further,

       Mother fails to explain how an inaccurate statement of D.L.’s precise legal

       relationship to Mother would support a reversal of the trial court’s CHINS

       adjudication as to Children.


[25]   With the exception of the erroneous, yet harmless, finding about D.L.’s

       adoption status, the trial court’s findings of fact were not clearly erroneous.


                                             Conclusions Thereon

[26]   We turn to Mother’s argument that the findings do not support the court’s

       conclusion that Children are CHINS.


[27]   DCS alleged that Children were CHINS under Section 31-34-1-1, which

       provides:

               A child is a child in need of services if before the child becomes
               eighteen (18) years of age:

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 12 of 15
               (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.


       I.C. § 31-34-1-1. The trial court concluded simply that Children “are children

       in need of services and DCS has proved the petition alleging same by a

       preponderance of the evidence.” (App. 95.)


[28]   The trial court’s findings establish the following facts: Children were five years

       old at the time of the fact-finding hearing. J.L. nearly drowned in a swimming

       pool while Mother failed to supervise him. J.L. also attempted suicide,

       apparently due to Sims’s presence in his life; however, Mother continues to

       maintain a relationship with Sims. Despite her knowledge and belief that

       Children had special medical and developmental needs, Mother was not

       providing Children, in particular K.L., with necessary medical care while in

       Indianapolis. Further, Children’s medical treatment in Michigan was

       terminated due to missed appointments. Mother has not provided stable

       housing for Children. Mother has a history of mental illness and a current

       mental health diagnosis, but is not taking prescribed medication. Mother’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 13 of 15
       “concerning behaviors” (App. 95) and “rambling and confusing” testimony at

       the fact-finding hearing also caused the trial court to have “concerns about

       [Mother’s] mental health.” (App. 94.) Mother has acknowledged being

       “overwhelmed.” (App 95.)


[29]   The trial court’s findings of fact therefore support the conclusion that Children

       are under eighteen, Children’s physical or mental conditions are seriously

       impaired or endangered as a result of Mother’s neglect, and Children need care

       and treatment that they are not receiving and is unlikely to be provided without

       court intervention.


[30]   Mother contends, however, that the findings do not support the judgment

       because the court did not enter a specific finding that the care and treatment

       Children need is unlikely to be provided or accepted without coercive court

       intervention. Because no statute requires special findings in a CHINS fact-

       finding order, the absence of this specific finding is not error. In re S.D., 2

       N.E.3d at 1288. Accordingly, to determine whether coercive court intervention

       was necessary, we review the whole record under the general judgment

       standard. Id. In this case, there was ample evidence that Mother was not

       providing care and treatment she was aware Children needed. Further,

       Children’s DCS caseworker testified about Mother’s “overly aggressive”

       attitude during their conversations. (Tr. 109.) Mother had visited Children

       only three times in the seven weeks they had been removed. From this

       evidence, the trial court could reasonably infer that Mother might not

       voluntarily participate in recommended services designed to help her provide

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-JC-2017 | June 28, 2016   Page 14 of 15
       Children with the necessary care and treatment. The evidence thus supports the

       conclusion that the coercive intervention of the court is necessary.


[31]   The trial court’s findings support the conclusion that Children are CHINS.



                                               Conclusion
[32]   The trial court’s order adjudicating Children CHINS was not clearly erroneous.


[33]   Affirmed.


       Bradford, J., and Altice, J., concur.




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