MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision
shall not be regarded as precedent or                        Aug 28 2015, 8:39 am
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 APPELLANT                              ATTORNEYS FOR APPELLEE
Michael D. Gross                                    Gregory F. Zoeller
Lebanon, Indiana                                    Attorney General of Indiana

                                                    Robert J. Henke
                                                    James D. Boyer
                                                    Deputies Attorney General
                                                    Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the matter of:                                        August 28, 2015
B.S. and A.S., Children In Need                          Court of Appeals Case No.
of Services, and                                         06A01-1501-JC-19
M.S.,                                                    Appeal from the Boone Circuit
Appellant-Respondent,                                    Court;
                                                         The Honorable J. Jeffrey Edens,
        v.                                               Judge;
                                                         The Honorable Sally E. Berish,
                                                         Magistrate;
The Indiana Department of                                06C01-1404-JC-103
Child Services,                                          06C01-1405-JC-124
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 06A01-1501-JC-19 | August 28, 2015   Page 1 of 7
      May, Judge.


[1]   M.S. (Mother) appeals the adjudication of her children, B.S. and A.S.

      (Children), as Children in Need of Services (CHINS). She argues the

      Department of Child Services (DCS) did not provide sufficient evidence

      Children were CHINS. We affirm.


                                  Facts and Procedural History
[2]   Mother gave birth to B.S. on September 25, 2012. On April 24, 2014, Lebanon

      Police received a report of an impaired person walking with a child. Police

      discovered Mother with B.S., who had not been fed or changed in a day.

      Officers observed Mother seemed “somewhat confused” and had difficulty

      “formulating her answers” to questions. (Tr. at 6-7.) Officers bought food for

      B.S. and Mother changed B.S.’s diaper on the officers’ instruction. The officers

      took Mother and B.S. to where Mother was staying with friends in Lebanon

      and contacted DCS.


[3]   DCS Family Case Manager Rachel Kenworthy conducted an assessment,

      transported Mother and B.S. back to their home in Thorntown, and established

      a safety plan with Mother and B.S. Mother consented to a drug test and tested

      negative. On April 25, DCS received a report Mother left B.S. with the friends

      with whom she had been staying and did not indicate when she would return.

      FCM Kenworthy, the family, and the police attempted to contact Mother to no

      avail. DCS detained B.S. because Mother could not be located and the family

      had prior DCS history. The trial court held a detention hearing regarding B.S.

      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-JC-19 | August 28, 2015   Page 2 of 7
      on April 29, during which Mother indicated she was staying with a friend;

      FCM Kenworthy later determined Mother was homeless.


[4]   On May 11, 2014, Mother gave birth to A.S. DCS detained A.S. because

      Mother was homeless and had refused DCS assistance to find housing when

      discharged from the hospital. However, at the May 14 detention hearing, the

      trial court returned A.S. to Mother because Mother was living with her friend,

      R.W.


[5]   Sometime after A.S.’s birth, B.S. was diagnosed with two medical conditions

      involving his kidneys and genitalia that required surgery. Mother attended

      some appointments regarding the condition, but insisted at one point, “you’re

      [DCS] liars and you want to take [B.S.’s] kidney.” (Tr. at 80.) B.S. also has

      speech delays.


[6]   On June 6, DCS Family Case Manager Kristin Miller visited R.W.’s home to

      check on the living arrangements and A.S.’s well-being. R.W. expressed

      concern regarding A.S.’s health and A.S.’s diaper rash. R.W. also indicated

      Mother would leave A.S. for long periods of time with random caregivers who

      did not know where Mother was. R.W. reported Mother was dating D.Z., who

      had been convicted of child molesting. Mother confirmed she had a romantic

      relationship with D.Z. and sent him money while he was in prison.


[7]   Later on June 6, R.W. brought Mother to the DCS office to formulate a safety

      plan to deal with A.S.’s health problem, which turned out to be thrush, and

      A.S.’s diaper rash. Mother was verbally combative with DCS staff, though she

      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-JC-19 | August 28, 2015   Page 3 of 7
      reluctantly signed the safety plan. Before leaving, she engaged in a

      confrontation with another DCS staff member, during which Mother banged on

      a table, making A.S.’s “head bounce[] off the table.” (Tr. at 35.) DCS detained

      A.S. at that time. On June 10, the trial court conducted a detention hearing

      and ordered A.S. to remain in foster care with B.S.


[8]   The trial court held a fact-finding hearing and adjudicated the Children as

      CHINS.


                                     Discussion and Decision
[9]   DCS presented sufficient evidence Children were CHINS. 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.



      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-JC-19 | August 28, 2015   Page 4 of 7
       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.


[10]   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 County DCS,

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

       whether 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.


[11]   Mother argues DCS did not present sufficient evidence Children needed “care,

       treatment, or rehabilitation” they were not receiving that would be “unlikely to

       be provided or accepted without the coercive intervention of the court.” Ind.

       Code § 31-34-1-1(2). Mother contends she has made “positive steps” since the

       beginning of the CHINS proceedings, and the court did not take into account

       that she was attending therapy and working on getting a stable income and

       housing when it adjudicated Children as CHINS. (Br. of Appellant at 8.)

       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-JC-19 | August 28, 2015   Page 5 of 7
[12]   The trial court found:

               The coercive intervention of the Court is necessary because two
               serious and previously undiagnosed medical conditions have
               been discovered in [B.S.] and said conditions require regular
               doctor appointments and monitoring[.] Mother has exhibited no
               ability to provide reliable private or public transportation for
               herself and the Children. Mother has had an ongoing
               relationship with [D.Z.], a convicted and registered child
               molester, including providing financial assistance to him before
               and since his incarceration, a relationship Mother plans to
               continue at such time as [D.Z.] may be released from prison.
               Additionally, Mother is currently incapable of regulating her
               emotions and reactions when faced with a situation she does not
               like. Mother’s testimony evidences she either has no concern or
               perhaps no comprehension that her reactions are excessive and
               inappropriate. Her combative, volatile outbursts when she is
               unhappy or angry or frustrated place the Children at risk of
               potential physical harm, which in fact has already happened with
               [A.S.]. Mother is currently unable to modify her reactions, and
               has only recently begun to explore in therapy managing
               frustration and appropriate responses.


       (App. at 91-2.) Mother’s argument is a request for us to reweigh the evidence,

       which we cannot do. See Parmeter, 878 N.E.2d at 450 (appellate court does not

       reweigh evidence). The facts, as set forth above herein, support the court’s

       findings and those findings support the court’s conclusion Children are CHINS.


                                                 Conclusion
[13]   DCS presented sufficient evidence Children were CHINS. Accordingly, we

       affirm.



       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-JC-19 | August 28, 2015   Page 6 of 7
[14]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-JC-19 | August 28, 2015   Page 7 of 7
