MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                               Jan 28 2016, 8:34 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Jill M. Acklin                                            Gregory F. Zoeller
McGrath, LLC                                              Attorney General of Indiana
Carmel, Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: B.C., a Child in                        January 28, 2016
Need of Services,                                         Court of Appeals Case No.
                                                          49A02-1503-JC-147
T.C. (Mother) and W.J. (Alleged
                                                          Appeal from the Marion Superior
Father #1),                                               Court
Appellants-Respondents,                                   The Honorable Marilyn A. Moores,
                                                          Judge
        v.                                                The Honorable Danielle P.
                                                          Gaughan, Magistrate
Indiana Department of Child                               Cause No. 49D09-1406-JC-1375
Services,
Appellee-Petitioner,

and


Child Advocates, Inc.,
Appellee (Guardian ad Litem).



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      Bradford, Judge.



                                           Case Summary
[1]   Appellants-Respondents T.C. (“Mother”) and W.J. (“Alleged Father #1”)

      appeal from the juvenile court’s determination that child B.C. (“Child”) is a

      child in need of services (“CHINS”). In June of 2014, Mother gave birth to

      Child. When Child was two weeks old, Mother sought assistance, indicating

      that she was homeless. When Mother was offered a referral to a shelter, she

      refused and indicated that she would obtain money for housing through

      prostitution. A worker with the Homeless Initiative Project (“HIP”) contacted

      Appellee-Petitioner the Indiana Department of Child Services (“DCS”) with

      concerns about Child’s welfare.


[2]   Due to concerns about Mother’s housing, illegal drug use, and mental health

      issues, Child was removed from Mother’s care and DCS filed a CHINS

      petition. Over the course of the next several months, Mother tested positive for

      marijuana several times, was diagnosed with intermittent explosive and

      depressive disorders, was living in an apartment paid for by Alleged Father #1,

      and did not have steady employment. Meanwhile, Alleged Father #1, whose

      paternity of Child had not yet been established, was rejected as a placement

      option due to concerns about the appropriateness of his home.


[3]   The juvenile court conducted a fact-finding hearing over three days in October

      and December of 2014, after which it found Child to be a CHINS. Following a


      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 2 of 15
      dispositional hearing, the juvenile court continued Child’s placement outside

      the homes of Mother and Alleged Father #1 and entered participation orders

      for Mother and Alleged Father #1. Alleged Father #1’s participation order

      provided, inter alia, that he establish paternity of Child. In a motion to correct

      error, Mother and Alleged Father #1 indicated that Alleged Father #1 has

      executed an affidavit of paternity in June of 2014. Mother and Alleged Father

      #1 argue that the juvenile court abused its discretion in finding that Child’s

      physical or mental condition was impaired or seriously endangered or that she

      needs care that she is not receiving. Because we conclude that the juvenile

      court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[4]   On June 11, 2014, Child was born to Mother. On June 25, 2014, Mother

      sought help because she was homeless at the time. DCS soon became involved,

      which led to removal of Child from Mother’s care and the filing of a CHINS

      petition on June 27, 2014. On October 27 and December 1 and 23, 2014, the

      juvenile court conducted evidentiary hearings on DCS’s CHINS petition.

      Following the evidentiary hearings, the juvenile court found Child to be a

      CHINS and issued the following findings of fact, none of which are challenged

      by Mother or Alleged Father #1:


              1. [Child] is a minor child whose date of birth is June 11, 2014.
              2. The mother of [Child] is [Mother].
              3. The father of [Child] is [Alleged Father #1].


      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 3 of 15
        4. Angela Floyd works with the Neighborhood Alliance for
           Child Safety (NACS). Mother signed up for the Parents as
           Teachers Program though NACS on June 25, 2015. Mother
           told Ms. Floyd that she was staying at a hotel with her baby
           but had run out of funds and was therefore homeless. Ms.
           Floyd scheduled an appointment with the Homelessness
           Initiative Program (HIP).
        5. Jonathan Griffin is triage and outreach professional at HIP.
           This program[] works to make resources available to homeless
           individuals. Mother went to HIP with her NACS worker and
           her baby. Mother told Mr. Griffin that she had nowhere to
           go. Mr. Griffin told her they would try and find her a shelter
           but Mother refused, saying, “I am not going to a f[******]
           shelter; I will kill myself.” Mother told Mr. Griffin that she
           would get money to pay for additional time at the hotel by
           prostituting herself.
        6. Once Mother left HIP, she told Ms. Floyd that she did not
           want her services anymore. When Ms. Floyd asked where
           she would go, Mother told her, “it is none of your f[******]
           business.”
        7. Michel[l]e Tackett was the family case manager that was
           assigned to investigate the safety and welfare of [Child]. DCS
           became involved with the family because of reports that
           Mother and [Child] were homeless, that Mother admitted to
           marijuana use and Mother had prior DCS history.
        8. Prior DCS involvement was because of marijuana use and
           homelessness but Mother’s mental health issues also became
           an issue. Mother’s prior DCS involvement resulted in the
           closure of the case with custody of the child awarded to the
           child’s father.
        9. On or about June 25, 2015 Ms. Tackett talked to Mother. At
           that time Mother was staying [at] a hotel and before that she
           was living in her cousin’s home while she was pregnant.
           Mother said that she had been staying at a hotel recently and
           before that she was living at her cousin’s home while she was

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 4 of 15
            pregnant. Mother acknowledged meeting with the housing
            initiative program that day but they wanted her to stay in a
            shelter and she did not want to. Other than “staying with a
            friend” Mother had no plan as to where she would go with
            the baby.
        10. With regard to her substance use, Mother stated that she had
            smoked [marijuana] the day before and twice since her
            daughter was born. She submitted to an oral drug swab at
            that time.
        11. With regard to her mental health, Mother stated that she had
            been diagnosed with depression, had been hospitalized for it
            in 2013, has been prescribed medication but was not currently
            taking any medication.
        12. Ms. Tackett also spoke with [Alleged Father #1]. [Alleged
            Father #1] stated that Mother was living with him but when
            confronted with Mother’s statements about Mother staying in
            a hotel, [Alleged Father #1] said that she did stay in a hotel.
        13. DCS did not consider placement with [Alleged Father #1]
            because paternity had not been established, there were
            conflicting statements as to whether Mother would be staying
            with him, and there were concerns that [Alleged Father #1]’s
            home was not appropriate.
        14. The child was removed by DCS and a child in need of
            services (CHINS) was filed on or about June 27, 2014.
        15. At the initial hearing regarding [Child], DCS recommended
            continued out of home placement. Continued out of home
            placement was authorized by the court and Mother was
            authorized to have supervised parenting time.
        16. After the initial hearing, in the parking lot of the courts,
            Mother called Ms. Tackett a “bald-headed b[****]” and
            threatened to hit her.
        17. Another incident that occurred outside the courtroom in the
            parking lot after a hearing was on October 13, 2014. Mother


Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 5 of 15
            approached Jonathan Griffin from HIP and Angela Floyd
            from NACS calling them names and yelling at them.
        18. Mother submitted to drug screens on June 25, 2014, August
            28, 2014, September 5, 2014 and September 13, 2014. All of
            the screens were positive for THC at levels that over the
            course of that period reflected new use.
        19. Kurtis O’Brien is [] a clinical therapist though Cummings
            Behavioral Health and received the referral for home based
            therapy for Mother on July 9, 2014. The intake process was
            completed on July 18, 2014 and services began. During the
            intake process Mother had an angry outburst.
        20. Mother has self-reported marijuana use to Mr. O’Brien and as
            recently as this morning admitted to marijuana use since the
            last appointment last week.
        21. Mr. O’Brien and Mother have discussed her mental health
            and Mother has acknowledged a hospitalization due to
            mental health issues in 2013.
        22. Mr. O’Brien has diagnosed Mother with intermittent
            explosive disorder and depressive disorder.
        23. Mr. O’Brien has seen the one bedroom apartment that
            Mother lives in. [Alleged Father #1] pays for the apartment
            though Mother reports they are not in a relationship.
        24. Although Mother has made progress in her approximately 12
            sessions with Mr. O’Brien, Mother continues to need on-
            going therapy with Mr. O’Brien.
        25. The home based case manager for Mother is Beth Oslane,
            from Adult and Child. Mother and Ms. Oslane meet once a
            week for 1 to 2 hours to address housing and employment.
            Mother has discussed with Ms. Oslane what she would do if
            [Alleged Father #1] stopped paying for her apartment.
            Mother, however, believes that he will always take care of
            her.



Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 6 of 15
        26. During a supervised visit in her home in September, Mother
            became upset and was angry about DCS and white people.
            She paced around the apartment and was swearing.
        27. At the time of the first day of trial on December 1, 2014,
            Mother was working at Hardee’s on the west side. By the
            time of the second day of trial on December 23, 2014, she no
            longer had that job, reporting that she quit because the people
            were difficult. At the time of the second day of trial, Mother
            was working at Amazon.
        28. Erica Glenn with Children’s Bureau is a foster care case
            manager that facilitated an exchange of the child from foster
            care to an unsupervised visit with [Alleged Father #1] in
            August 2014. [Alleged Father #1] had not properly secured
            [Child] in the car seat or the car seat into the car. Ms. Glen[n]
            did a quick tutorial on how to properly use the car seat. Also,
            when [Alleged Father #1] returned the child, the child’s
            diaper had not been changed during the two hour visit.
            [Alleged Father #1] stated that he did not get a chance to
            change her diaper.
        29. Richard Dark is employed by Family Works and he is a home
            based case manager. He received the referral at the end of
            August but did not make contact until September 8 or 9 of
            2014. Mr. Dark assists with transportation to and from visits
            and observes some of the visits. [Alleged Father #1] has been
            cooperative but has had difficulty meeting with him because
            of time limitations. He is employed, trying to start his own
            business, and works 14 hours a day. [Alleged Father #1] has
            his elderly Mother living with him.
        30. Richard Dark does not recommend placement with [Alleged
            Father #1] at this time. [Alleged Father #1] still requires
            supervision at his visits. The visits are scheduled once per
            week. Because [Alleged Father #1] does not have the time to
            meet with Mr. Dark once a week to discuss parenting, Mr.
            Dark does his best to address parenting at the beginning and
            end of each visit.

Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 7 of 15
      Appellants’ App. pp. 100-04.


[5]   The juvenile court also concluded as follows:

              31. 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 parents to supply the child with
                  necessary food, clothing, shelter, medical care, education, or
                  supervision. Mother has mental health issues that are
                  currently untreated and even by her own admission, on-going
                  marijuana use. Mother has repeated angry outbursts,
                  characteristic of her diagnosis for intermittent explosive
                  disorder. [Alleged Father #1] has not established paternity,
                  does not have the time or ability to care for [Child] and has
                  not demonstrated the ability to do so.
              32. The child needs care, treatment, or rehabilitation that she is
                  not receiving and she is unlikely to be provided or accepted
                  without the coercive intervention of the court. Mother is
                  uncooperative, argumentative and aggressive with providers
                  that are trying to assist her. [Alleged Father #1] has not
                  established paternity and has not demonstrated the ability to
                  parent [Child].


      Appellants’ App. p. 104.


[6]   On January 23, 2015, the juvenile court held a dispositional hearing. DCS’s

      counsel stated at the hearing that Mother had been testing positive for cocaine

      use. Following the hearing the juvenile court issued participation orders for

      both Mother and Alleged Father #1. The juvenile court ordered that Mother

      establish paternity of Child, participate in home-based therapy and case

      management, undergo substance abuse assessment and random drug screens,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 8 of 15
      submit to a psychological evaluation, and participate in parenting time. The

      juvenile court ordered that Alleged Father #1 establish paternity and participate

      in home-based case management.


[7]   On January 28, 2015, Mother and Alleged Father #1 filed a joint motion to

      correct error, requesting the juvenile court reconsider its order to establish

      paternity on the basis that Alleged Father #1 had executed a paternity affidavit

      on June 16, 2014. Following a response by DCS, the juvenile court denied the

      motion to correct error and vacated its order for DNA testing. On June 26,

      2015, the juvenile court conducted a permanency hearing, after which it issued

      an order granting DCS’s motion to add C.P. (“Alleged Father #2”) to the

      CHINS case. On June 29, 2015, the juvenile court ordered Mother and Alleged

      Father #2 to submit to DNA testing to establish Child’s paternity. On July 7,

      2015, Mother and Alleged Father #1 jointly moved to rescind the juvenile

      court’s order to submit to DNA testing. On August 7, 2015, the juvenile court

      denied Mother and Alleged Father #1’s joint motion.



                                 Discussion and Decision
[8]   With respect to CHINS determinations, the Indiana Supreme Court has stated

      the following:


              [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

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 9 of 15
               Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
               only the evidence that supports the [juvenile] court’s decision and
               reasonable inferences drawn therefrom. Id. We reverse only
               upon a showing that the decision of the [juvenile] 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 (Ind. 2012) (footnote omitted).


[9]    Indiana Code section 31-34-1-1, on which the juvenile court based its

       disposition, provides that a child is a CHINS before the child becomes eighteen

       years of age if:


               (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.
[10]   As the Indiana Supreme Court has observed,



       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 10 of 15
               Juvenile law is constructed upon the foundation of the State’s
               parens patriae power, rather than the adversarial nature of corpus
               juris. Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045, 16
               L. Ed. 2d 84 (1966). Indeed, juvenile court jurisdiction “is rooted
               in social welfare philosophy rather than in the corpus juris.” Id.
               The purpose of the CHINS adjudication is to “protect the
               children, not punish parents.” In re N.E., [919 N.E.2d 102, 106
               (Ind. 2010)]. The process of the CHINS proceeding focuses on
               “the best interests of the child, rather than guilt or innocence as
               in a criminal proceeding.” Id.
       In re K.D., 962 N.E.2d at 1255.


[11]   Mother and Alleged Father #1 argue that the juvenile court’s finding that

       section 31-34-1-1 was satisfied constitutes an abuse of discretion because all

       indications were that Child appeared to be a healthy baby when removed from

       Mother’s care. DCS, however, was not required to establish that Child had

       already been harmed, only that her physical or mental condition was seriously

       impaired or seriously endangered. “The CHINS statute … does not require

       that a court wait until a tragedy occurs to intervene.” In re A.H., 913 N.E.2d

       303, 306 (Ind. Ct. App. 2009) (citing Roark v. Roark, 551 N.E.2d 865, 872 (Ind.

       Ct. App. 1990)). “Rather, a child is a CHINS when he or she is endangered by

       parental action or inaction.” Id. With this in mind, we conclude that the

       record contains ample evidence to support the juvenile court’s disposition.


                                                  I. Mother
[12]   Mother came forward with two-week-old Child because she was homeless, and,

       yet, when offered a referral to a shelter, flatly refused. Whatever Mother’s

       feelings about homeless shelters, Child would have been provided with a roof

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 11 of 15
       over her head had Mother accepted the assistance offered to her. In the months

       that followed Child’s removal, Mother showed an inability to provide stable

       housing. At the time of the first fact-finding hearing in October of 2014,

       Mother claimed that she was living in her own apartment. The apartment,

       however, was being paid for by Alleged Father #1. In a previous case in which

       Child’s sibling was removed from Mother’s care, Alleged Father #1 had also

       been paying for an apartment for Mother but stopped, resulting in Mother’s

       homelessness. Mother did not have a plan if Alleged Father #1 stopped paying

       for the apartment in this case.


[13]   Mother has unresolved mental health issues. Mother was hospitalized in 2013

       for depression after she tried to kill herself and her aunt. Mother, however, has

       not been in therapy and has not taken her prescribed medication. During this

       CHINS case, Mother was diagnosed with intermittent explosive and depressive

       disorders. O’Brien, Mother’s therapist, opined that Mother’s explosive disorder

       could put Child at risk and that Mother needed ongoing therapy to address her

       mental health issues. Additionally, Family Case Manager Simon Galaye

       (“FCM Galaye”) was concerned for Child’s safety because Mother is unable to

       control her emotions and had witnessed Mother’s “explosive” behavior on

       several occasions. Tr. p. 270. Mother frequently directed her aggressive

       behavior toward service providers, even having to be restrained by her attorney

       and Alleged Father #1 as she approached Griffin following a hearing.


[14]   Mother also has unresolved substance abuse issues. Mother admitted to using

       marijuana regularly and tested positive for it seven times from June 25 to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 12 of 15
       October 2, 2014. The record also indicates that Mother tested positive for

       cocaine prior to the dispositional hearing.


[15]   In summary, there is ample evidence in the record regarding Mother’s unstable

       housing and employment situation, her unaddressed mental health issues, and

       her continuing substance abuse. Additionally, Mother has shown little

       indication that she is willing to accept the assistance she needs in order to

       adequately care for Child, refusing to admit that she has mental health issues in

       need of treatment, refusing assistance in finding housing, and frequently

       displaying aggressive behavior toward service providers. The juvenile court did

       not abuse its discretion in concluding that Mother was an unsuitable placement

       option for Child at this time.


                                       II. Alleged Father #1
[16]   There is also ample evidence to support the juvenile court’s conclusion that

       Alleged Father #1 is a not a suitable placement option for Child at this time.

       DCS did not want to place Child in Father’s care because he resisted

       establishing paternity, had not progressed enough in services, and had already

       exhibited difficulty caring for his elderly mother. Alleged Father #1 was also

       working long hours such that he was unable to find time to meet with home-

       based case manager Dark to address parenting issues. Dark was ultimately

       unable to recommend placement with Alleged Father #1 due to these concerns.


[17]   Moreover, while Mother and Alleged Father #1 seem to proceed as though

       Alleged Father #1’s paternity has been conclusively established, the record

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 13 of 15
       before us does not bear this out. First, although the paternity affidavit executed

       by Alleged Father #1 and Mother is dated June 16, 2014, the same document

       indicates that it was, in fact, signed and filed on July 7, 2014, ten days after DCS

       became involved and eight days after Child was removed from Mother’s care.

       As for Alleged Father #2, he contacted the juvenile court on June 25, 2015, and

       indicated that he was Child’s biological father. Alleged Father #2 testified at

       the permanency hearing that Mother told him that he was Child’s biological

       father.


[18]   The Indiana Supreme Court has observed that “there is a substantial public

       policy in correctly identifying parents and their offspring.” In re Paternity of

       S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992). “Proper identification of parents

       and child should prove to be in the best interests of the child for medical or

       psychological reasons.” Id. We have held that “a biological father was entitled

       to file a petition to establish paternity under the Indiana Code despite the fact

       that the mother and a different man had executed a paternity affidavit.” In re

       Paternity of E.M.L.G., 863 N.E.2d 867, 870 (Ind. Ct. App. 2007). If it is

       ultimately established that Alleged Father #1 is not, in fact, Child’s biological

       father, that would further undermine his suitability as a placement option, to

       say the least.


[19]   In summary, doubts regarding (1) Alleged Father #1’s biological relationship

       with Child, (2) parenting skills, (3 stated plans to secure relative daycare, and

       (3) willingness and availability to parent are sufficient to support the conclusion



       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-JC-147 | January 28, 2016   Page 14 of 15
       that he is not a satisfactory placement option at this time. The juvenile court

       did not abuse its discretion in this regard.


                           III. Whether the Juvenile Court’s
                           Coercive Intervention is Necessary
[20]   Mother and Alleged Father #1 argue that even if one assumes that Mother does

       suffer from mental illness, the juvenile court’s coercive intervention is not

       necessary. Although Mother did initially seek services, she did not accept the

       assistance that was offered and ceased those services altogether after DCS

       became involved. Moreover, throughout the instant case, Mother had shown

       considerable resistance to—and hostility toward—DCS, service providers, and

       the juvenile court. Finally, Mother does not acknowledge that she has

       substance abuse or mental health issues, so those remain unaddressed. As for

       Alleged Father #1, his paternity has not yet been established, and he has been

       unwilling or unable to make the time to take full advantage of the services

       offered to him. It is reasonable to expect that Alleged Father #1’s interest will

       wane further if it is established that he is not Child’s biological father. The

       juvenile court did not abuse its discretion in concluding that its coercive

       intervention was necessary in order to assure that Child receives appropriate

       care.


       The judgment of the juvenile court is affirmed.


       Baker, J., and Pyle, J., concur.




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