MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Aug 09 2019, 8:54 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
Rory Gallagher                                            Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                         August 9, 2019
B.G. (Minor Child), Child in                              Court of Appeals Case No.
Need of Services,                                         19A-JC-4
and                                                       Appeal from the Marion Superior
                                                          Court
C.G. (Mother),
                                                          The Honorable Marilyn A.
Appellant-Respondent,                                     Moores, Judge
                                                          The Honorable Beth L. Jansen,
        v.                                                Magistrate
                                                          Trial Court Cause No.
The Indiana Department of                                 49D09-1808-JC-2132
Child Services,
Appellee-Petitioner



Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019                    Page 1 of 14
[1]   C.G. (Mother) appeals the juvenile court’s order finding her child, B.G. (Child),

      to be a child in need of services (CHINS). Mother argues that the evidence is

      insufficient to support the CHINS adjudication. Finding the evidence

      sufficient, we affirm.


                                                         Facts
[2]   Mother has a history with the Department of Child Services (DCS). In 2012,

      DCS filed a petition alleging that Mother’s two oldest children were CHINS

      because of Mother’s untreated mental health issues.1 In June 2016, Mother

      admitted that her three older children were CHINS because she needed

      “assistance in maintaining stable mental health and suitable and appropriate

      housing.” Appellant’s App. Vol. II p. 93. Mother failed to participate with

      court-ordered services in that case and, in May 2017, the juvenile court changed

      the permanency plan for her oldest three children from reunification to

      adoption. In June 2017, DCS filed a petition to terminate the parent-child

      relationship between Mother and at least one of those children. The status of

      the termination case is not revealed by the record; however, the CHINS case

      remained open throughout the instant proceedings.


[3]   Mother gave birth to Child on June 10, 2018. Two days later, DCS removed

      Child from Mother’s care and custody and placed her in relative care. DCS

      filed a petition alleging Child to be a CHINS. On August 1, 2018, Child’s




      1
          The record does not reveal the outcome of this proceeding.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019   Page 2 of 14
      Father confined Mother and one of her other children in a bedroom. Mother

      called the police. Father threw an object into the wall, resulting in a hole in the

      wall, pushed Mother into the closet door, and may have injured the child.

      When police arrived, he answered the door with a knife in his hand. Father,

      who is not participating in this appeal, was incarcerated on charges stemming

      from that incident at the time of the CHINS factfinding in this case.


[4]   The CHINS case proceeded to a factfinding hearing on August 9, 2018.

      Partway through the hearing, the juvenile court granted DCS’s motion to

      continue over Mother’s objection, but did not set a new hearing date. On

      August 15, 2018, Mother filed a motion to dismiss the CHINS petition based

      on a failure to comply with statutory deadlines. The juvenile court granted the

      motion to dismiss on August 23, 2018.2


[5]   On August 24, 2018, DCS filed a new petition alleging Child to be a CHINS

      based on Mother’s untreated mental health issues, a failure to participate with

      service providers in her other open CHINS case, and the August 1 domestic

      violence incident.3 The factfinding hearing took place on October 22, 2018.


[6]   At the hearing, Mother admitted that she had been diagnosed with borderline

      personality disorder, bipolar disorder, schizoaffective disorder, and severe



      2
        Mother asks that we take judicial notice of the record in the dismissed CHINS case; DCS objects. By
      separate order, we grant the motion, but only to the extent of the dates of the relevant court proceedings—
      which, in any event, is all Mother was requesting.
      3
       Mother explicitly stated that she is not making a res judicata argument that the second CHINS petition is
      impermissibly based solely on the allegations of the first CHINS petition. Appellant’s Mtn. to Strike p. 5.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019                       Page 3 of 14
      depression. Dr. Mukesh Desai, a staff psychiatrist with Midtown Mental

      Health, testified that he had diagnosed Mother with schizoaffective disorder

      and borderline personality disorder in July 2018. He had prescribed Mother

      Latuda, a mood stabilizer, but she failed to return for follow-up appointments

      in September and October to check on the effectiveness of the medication. She

      had not refilled the Latuda prescription and it would have run out before the

      factfinding hearing.


[7]   Dr. Desai testified that it is critical that Mother return for follow-up

      appointments, follow a medication management plan, and regularly attend

      individual therapy. Her borderline personality disorder, if untreated, causes her

      to be volatile and unpredictable. And her schizoaffective disorder causes

      moods that alternate between depressed and manic; it also causes auditory or

      visual hallucinations. A person who has these co-existing conditions but fails to

      treat them will become gravely compromised in their ability to parent. Patients

      with these mental health conditions lose emotional control when experiencing

      relatively minor frustrations and moments of ambiguity, both of which are

      frequent parts of parenting children, especially infants.


[8]   At the appointment when Dr. Desai prescribed Latuda for Mother, she became

      extremely agitated because she wanted a different medication; he had to call

      security before she began to calm down. At an October 1, 2018, child and

      family team meeting, Mother became extremely agitated and erratic, storming

      out repeatedly and making statements suggesting to some of those present that

      she planned to harm or kill herself. Mother’s family case manager (FCM)

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019   Page 4 of 14
       reported that at a home visit three days before the factfinding, Mother became

       very agitated, could not control her behavior, and lost emotional control when

       something did not go the way she had hoped. The FCM explained that Mother

       was “explosive in a manner that was concerning.” Tr. Vol. II p. 109.


[9]    Mother’s home-based therapist testified at the factfinding hearing, explaining

       that the service was closed unsuccessfully after she began refusing to work with

       him. He was concerned about Mother’s episodes of paranoia, inability to

       remember information, and episodes of extreme agitation. He recommended

       that she undergo a mental health evaluation.


[10]   Mother visited with Child inconsistently from June 11 through August 6, 2018.

       Simon Gelaye was the visit facilitator, reporting that Mother often displayed

       concerning behavior. She fell asleep while Child was sleeping in her arms and

       failed to support the newborn infant’s head properly. She struggled to calm

       down before and during parenting time. Gelaye considered ending at least one

       visit early because Mother struggled to calm herself. Mother missed multiple

       visits because she failed to wake up on time, and Gelaye became concerned that

       she would not be able to wake up if Child needed care or attention. Many visits

       ended early.


[11]   Sheryl Alexander supervised parenting time between Mother and Child

       between August and October 2018. Alexander observed Mother getting

       agitated with Gelaye on one occasion and observed combative behaviors at

       child and family team meetings, but did not observe any troubling behavior


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019   Page 5 of 14
       during visits. Alexander observed that Mother was nurturing and attentive to

       Child and testified that she did not have any safety concerns about Mother’s

       parenting. She recommended that Child be placed with Mother. Alexander

       admitted that if Mother’s mental health issues were untreated, she would have

       safety concerns about Mother’s parenting abilities, but she chose to believe

       Mother’s statements that she was receiving treatment.


[12]   Mother testified about the domestic violence incident between herself and

       Father. She explained that she called the police because the injured child had

       asked Father to leave and he refused. She denied that she had ever been in a

       domestic violence incident with Father and testified that she did not “have

       plans” to live with Father “at this time.” Id. at 41, 53. Mother would not say

       that she would never live with Father again. Id. at 53.


[13]   Mother began to exhibit paranoia about Father. In September 2018, Mother

       called the police and reported that she thought Father had asked someone to

       come watch her home and vandalize her car. Mother told Alexander that they

       needed to be aware of their surroundings when they left a visit together because

       Father had sent people to follow them. Alexander asked Mother if she had a

       protective order and Mother replied that she did not. Alexander found this

       behavior concerning enough that she reported it to a DCS supervisor.


[14]   On December 4, 2018, the juvenile court found Child to be a CHINS. In

       relevant part, it found as follows:




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019   Page 6 of 14
        10.      Mother does not demonstrate an awareness of the current
                 state of affairs. Mother has issues processing and her
                 testimony is convoluted and shows that she has mental
                 health issues. Mother does not appreciate that she was
                 court ordered to participate in services for her older
                 children. Mother erroneously believes that she
                 successfully completed services for the older children yet at
                 one time their plan of permanency was changed to
                 adoption.


        11.      Mother[’s] testimony is convoluted and contradictory and
                 the Court finds her incredible.


        12.      Mother has been diagnosed with personality disorder,
                 schizo-affective disorder, [and] severe depression. These
                 are long-standing mental health issues that are not
                 successfully addressed as of yet.


                                                 ***


        15.      Mother denies that there was any domestic violence
                 between herself and the Father, which shows that she is
                 not attuned to reality. . . .


        16.      The inability of Mother to recognize domestic violence
                 and its toxic effects on all involved pose a danger to the
                 safety and well-being of any child placed in her care.


                                                 ***


        18.      Mother has had multiple service providers under the JC
                 cause for her older children and she has not complied with
                 any service providers.


Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019   Page 7 of 14
        19.      Although Mother has the ability to meet with mental
                 health professional and she does on occasion, her mental
                 health is concerning for dealing with any type of conflict
                 and would make parenting an infant difficult.


        20.      Mother’s current claim of willingness to participate in
                 services and mental health treatment does not satisfy this
                 Court’s concerns about the necessity of coercive
                 intervention especially in light of this Court’s prior
                 findings for older children and Mother’s continued denial
                 as to this petition.


                                                 ***


        24.      With Mother’s mental health diagnosis, the concerns are
                 Mother’s volatile presentation and how it affects the ability
                 to parent. Mother’s ability to safely parent will be
                 significantly compromised by her mental health issues and
                 her inability to meet with service providers and satisfy
                 them. The ability to safely parent could be compromised
                 because of the stresses that parenting presents.


                                                 ***


        33.      [The Guardian ad Litem (GAL)] does not believe it is in
                 [Child’s] best interests to be placed in her Mother’s care
                 because of Mother’s unstable mental health and the
                 serious safety risks that [it] presents. [The GAL] has seen
                 concerning erratic behaviors by Mother which preclude
                 her from properly parenting this child and the older
                 children as well.


                                                 ***



Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019    Page 8 of 14
               36.      [Mother’s erratic and volatile behavior] is concerning
                        because much of parenting is dealing with the frustrations
                        [that] children present.


               37.      Mother has NOT been cooperative or compliant and has
                        not shown that she is medically compliant and has not
                        shown that she is addressing her mental health issues.


               38.      . . . Although Ms. Alexander stated she has no safety
                        concerns for Mother’s parenting[,] she has seen Mother’s
                        behavior become problematic when confronted with
                        frustrating situations, which lead this Court to have safety
                        concerns for this child in the care of Mother.


       Appellant’s App. Vol. II p. 93-95. On December 4, 2018, the juvenile court

       held a dispositional hearing and ordered Mother to participate with home-based

       therapy, complete an assessment for domestic violence services and follow all

       recommendations, and either complete a psychological assessment or provide a

       copy to DCS of a psychological evaluation that had been completed in the

       preceding twelve months. Mother now appeals.


                                     Discussion and Decision
[15]   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
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019     Page 9 of 14
               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
               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).


[16]   Here, DCS alleged that Child 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;
                        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-4 | August 9, 2019   Page 10 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).


[17]   Here, Mother argues that the evidence was insufficient to establish that Child’s

       physical or mental condition was seriously endangered as a result of Mother’s

       mental health issues or of the domestic violence in the family.4 5


[18]   Turning first to Mother’s mental health issues, she insists that the juvenile court

       focused impermissibly on a concern that Mother’s mental health could seriously

       endanger Child in the future rather than a finding that Child is currently

       seriously endangered. We agree with Mother that this would, indeed, be an

       impermissible concern on which to base a CHINS adjudication. Here,

       however, the record is replete with evidence showing that Child would be




       4
         DCS spends much of its brief responding to an argument that Mother did not make—namely, that the
       juvenile court erred in considering Mother’s history of mental illness, DCS involvement, and domestic
       violence. Appellee’s Br. p. 19-27. Mother has moved to strike this portion of the brief. By separate order, we
       deny that motion, as DCS is free to frame the issues as it wishes. We agree with Mother, however, that this
       portion of DCS’s brief seems to be a proverbial ship passing Mother’s actual argument in the night.
       5
         To the extent that Mother may be arguing that the evidence did not show that the coercive intervention of
       the court was necessary, we note that the fact that she was failing to participate with court-ordered services in
       her other CHINS case dramatically undercuts this argument. Moreover, beyond her own testimony, which
       the trial court found to be not credible, there is no evidence in the record that she was participating with
       mental health treatment of her own volition.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019                        Page 11 of 14
seriously endangered, right now, if she were placed in Mother’s care and

custody.


    • Mother had an open CHINS case at the time of this factfinding for her
      three older children. In that case, she had failed to participate with
      services, her children were not placed with her, and their plan of
      permanency had been changed to adoption.
    • Mother has multiple, serious mental health diagnoses. Beyond her own
      claims, which the juvenile court explicitly found to be not credible, there
      is no evidence in the record that she is currently receiving treatment,
      including either medication or therapy, for those conditions.
    • A patient with those co-existing conditions who fails to treat them is
      gravely compromised in her ability to parent because she will lose
      emotional control when experiencing minor frustrations.
    • There are multiple examples in the record of Mother losing emotional
      control, including episodes of volatility, agitation, and explosive
      behavior. The most recent incident occurred just days before the
      factfinding hearing.
    • Mother’s first visitation supervisor reported that Mother’s behavior
      during visits was concerning. She struggled to calm herself down before
      and during parenting time. She fell asleep holding Child and failed to
      support the infant’s head properly. She missed multiple visits because
      she failed to wake up on time.
    • Mother’s second visitation supervisor did not have concerns about
      Mother’s behavior during visits, but she did observe volatile behavior
      from Mother on other occasions. She also testified that, while Mother
      had reported to her that she was receiving mental health treatment, she
      would have safety concerns about Mother’s parenting if her mental
      health issues were untreated.
    • The GAL had been working with Mother’s older children in the other
      CHINS case and believed that Child would be seriously endangered if
      placed in Mother’s care based on Mother’s erratic behavior and unstable
      mental health.




Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019   Page 12 of 14
       While Mother seeks to minimize this evidence by conceding that she sometimes

       “lose[s] her temper, raise[s] her voice, or address[es] others in a demanding

       tone,” appellant’s br. p. 15, we are not persuaded with this characterization of

       the record, nor does this comply with our standard of review. Additionally, in

       emphasizing the more positive testimony of the second visitation supervisor

       while overlooking much of the more negative testimony, Mother asks us to

       reweigh the evidence, which we may not do.


[19]   This Court has noted that a parent’s mental illness, in and of itself, does not

       necessarily present a serious danger to the child. In re E.Y., 93 N.E.3d 1141,

       1146 (Ind. Ct. App. 2018). Here, however, it is not the mere fact of Mother’s

       mental illness that supports the CHINS finding. Instead, it is the manifestation

       of that mental illness, including volatile and explosive behavior and an inability

       to handle minor frustrations with emotional control. Unless and until Mother

       is in regular mental health treatment that is helping her to regulate her

       emotions, we have little difficulty finding that the juvenile court reasonably

       concluded that Child would be seriously endangered if placed in Mother’s care

       and custody. See In re K.P.G., 99 N.E.3d 677, 684 (Ind. Ct. App. 2018) (noting

       that an inability or unwillingness to address mental illness when it creates an

       unsafe environment is proof of serious endangerment).


[20]   With respect to the domestic violence issue, we note that it appears that Mother

       was a victim and called the police to report the altercation, leading to Father’s

       arrest and incarceration. We would certainly not find this incident, in and of

       itself, sufficient to support a CHINS adjudication. What concerned the juvenile

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019   Page 13 of 14
       court, however, was that at the factfinding hearing, Mother denied that any

       domestic violence had ever occurred between her and Father and, while she

       stated that she did not have plans to live with Father again, she refused to rule

       out the possibility categorically. It was Mother’s “inability . . . to recognize

       domestic violence and its toxic effects on all” that formed part of the basis of

       the CHINS finding, rather than the incident itself or her decision to report it.

       Appellant’s App. Vol. II p. 93. While this evidence, alone, would not have

       sufficed to support a CHINS finding, we find that it was not erroneous for the

       juvenile court to consider it along with all the other evidence in finding that

       Child was a CHINS.


[21]   It is undeniable, based on the record, that Mother and Child have a bond and

       that Mother genuinely loves her daughter. We hope that the services offered in

       the CHINS case will enable Mother to reach a place where she can safely and

       appropriately parent her child.


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


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-4 | August 9, 2019   Page 14 of 14
