MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Nov 15 2016, 11:31 am
court except for the purpose of establishing                       CLERK
the defense of res judicata, collateral                        Indiana Supreme Court
                                                                  Court of Appeals
estoppel, or the law of the case.                                   and Tax Court




ATTORNEYS FOR APPELLANTS                                ATTORNEYS FOR APPELLEE
Isabella H. Bravo                                       Gregory F. Zoeller
Monroe County Public Defender’s                         Attorney General of Indiana
Office
Bloomington, Indiana                                    Robert J. Henke
                                                        Deputy Attorney General
Karen E. Wrenbeck
Monroe County Public Defender’s                         James D. Boyer
Office                                                  Deputy Attorney General
Bloomington, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of Jo.K. and L.K.                         November 15, 2016
(Minor Children in Need of                              Court of Appeals Case No.
Services),                                              53A04-1603-JC-711
                                                        Appeal from the Monroe Circuit
Ja.K. (Mother) and L.K.                                 Court
(Father),                                               The Honorable Stephen R. Galvin,
Appellants-Respondents,                                 Judge
                                                        Trial Court Cause Nos.
        v.                                              53C07-1508-JC-491 and
                                                        53C07-1508-JC-492
Indiana Department of Child
Services,
Appellee-Petitioner.


Court of Appeals of Indiana | Memorandum Decision 53A04-1603-JC-711| November 15, 2016   Page 1 of 9
      Najam, Judge.


                                       Statement of the Case
[1]   Ja.K. (“Mother”) and L.K. (“Father”) (collectively “the Parents”) appeal the

      juvenile court’s order finding their children Jo.K. and L.K. (“the Children”) to

      be children in need of services (“CHINS”). The Parents present a single issue

      for our review, namely, whether the evidence is sufficient to support the CHINS

      adjudications. We affirm.


                                 Facts and Procedural History
[2]   L.K. was born on May 21, 2004, and Jo.K. was born on July 12, 2005. The

      Children were living with the Parents in May 2015, when the Indiana

      Department of Child Services (“DCS”) received a report that the Parents were

      abusing illegal drugs in the home. On May 7, DCS caseworker Gennifer

      Weisheit visited the Parents at their home to investigate, and, at one point,

      Mother “started yelling and threatening to beat people up and kick people’s

      teeth out.” Tr. at 12. The Parents refused to let Weisheit see their bedroom,

      and they refused to submit to drug screens. Weisheit also interviewed the

      Children at their school. At that time, L.K. was having serious behavioral

      problems at home and at school. For instance, L.K. had “slashed tires and

      thrown rocks in the trailer court” where they lived. Id. at 14. Weisheit talked

      to Father about having L.K. assessed for ADHD and seeking medical treatment

      for “recommendations to assist with his behaviors.” Id. at 13. But the Parents

      did not seek any such medical treatment for L.K.


      Court of Appeals of Indiana | Memorandum Decision 53A04-1603-JC-711| November 15, 2016   Page 2 of 9
[3]   In August, Weisheit received a report alleging that the Parents were neglecting

      the Children. Accordingly, Weisheit interviewed the Parents, the Children, and

      school personnel. When Weisheit visited the Children’s school, she found that

      L.K. had been placed in a specially-padded room by himself. Among the

      incidents at school in which L.K. had been involved, on one day in August,

      L.K. had “wrapped a piece of paper around some kind of hard object and threw

      it at a substitute teacher[.]” Id. at 31. School officials then placed L.K. inside

      the padded room, where he “struck one of the custodians . . . a couple of times”

      and kicked an assistant principal and tried to hit him with his fists. Id.

      Weisheit asked the Parents whether they had sought medical treatment for

      L.K.’s behavioral problems, as they had discussed in May. The Parents stated

      that “they did not want L.K. on medication” and that they did not believe that

      mental health counseling would help L.K. Id. at 14.


[4]   Mother admitted to Weisheit that she was using methamphetamine, which she

      got from Father, Xanax, and marijuana. Mother had also petitioned for a

      protective order against Father following alleged domestic abuse. In particular,

      Mother alleged that Father had “smashed” her cell phone and “carried her from

      the living room and put her in her bedroom on the bed.” Id. at 9-10. When

      Weisheit talked to Father, he initially denied any drug abuse, but he eventually

      admitted to smoking marijuana. Father admitted that he was high on

      marijuana during a meeting with Weisheit. And Father told Weisheit that

      Mother had “destroyed the televisions in the home, burned his clothes, and

      called the police.” Id. at 11.


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[5]   On August 26, 2015, DCS established a safety plan, which the Parents violated

      on August 29. Accordingly, DCS removed the Children from the Parents’ care

      and filed petitions alleging that the Children were CHINS. Following a

      factfinding hearing on December 17, the juvenile court issued the following

      findings and conclusions in support of its determination that the Children are

      CHINS:


              2.     On May 7, 2015, the Department of Child Services
              investigated an allegation of drug use in the [Parents’] home.
              [Mother] became angry during the investigation. She made
              threats to DCS caseworker Jennifer Weisheit. [The Parents]
              refused to allow Ms. Weisheit into their rooms. They refused to
              provide drug screens.

              3.     On May 27, 2015, [L.K.] was experiencing behavioral
              problems at school. He had also slashed tires in the trailer court
              where the family resides. Ms. Weisheit spoke to [Father] about
              [L.K.]’s behavior. She recommended that he take [L.K.] to the
              doctor for an assessment. The parents did not take [L.K.] to the
              doctor. They did not want [L.K.] to be on medication. They did
              not think that counseling would help him.

              4.     On August 15, 2015, [L.K.] became violent at school. He
              threw an object at a substitute teacher. He struck a custodian
              several times. He struck an assistant principal with his fist. He
              also kicked the assistant principal. The school resource officer
              had to intervene. [L.K.] was placed in a padded seclusion room
              for his own protection.

              5.     On or about August 25, 2015, the DCS caseworker spoke
              to [Mother] at a protective order hearing. [Mother] had filed for
              a protective order against [Father] because there had been
              domestic violence in the home. [Mother] stated that [Father] had
              smashed her cell phone and carried her from the living room to
      Court of Appeals of Indiana | Memorandum Decision 53A04-1603-JC-711| November 15, 2016   Page 4 of 9
        her bed. [Mother] also admitted to the recent use of
        methamphetamine, Xanax, and marijuana. [Mother] stated that
        she obtained the methamphetamine from [Father].

        6.    When questioned about domestic violence in the home,
        [Father] stated that [Mother] had destroyed the televisions in the
        home and burned his cloth[e]s.

        7.     When interviewed, [L.K.] told Ms. Weisheit that his
        mother had put his dad’s cloth[e]s on the grill and set them on
        fire. He also stated that his mother destroyed the televisions. He
        stated that his mother uses Suboxone and marijuana.

        8.    [Jo.K.] told Ms. Weisheit that her mother uses Xanax for
        her nerves. She stated that her father smokes marijuana which
        he keeps in his bedroom. She also stated that her father sells
        marijuana in the home most days. She sometimes sees 5 to 8
        people come over and take out money for marijuana. The Court
        accepts the children’s statements as true.

        9.    [Father] initially denied drug use. However, on September
        2, 2015, [Father] was clearly impaired during a meeting at the
        Department of Child Services. He admitted to using marijuana.
        With one exception, he has refused to take drug screens.

        10. The parents maintain that the children’s statements made
        prior to removal are not credible because the children recanted
        most of these statements in a deposition given on November 13,
        2015. During the deposition, the children variously stated that
        they lied to Ms. Weisheit or that they did not make the
        statements attributed to them by Ms. Weisheit. However, they
        did not provide adequate explanations for why they would lie or
        why Ms. Weisheit would invent statements that they did not
        make. Further, the children’s statements made prior to removal
        demonstrate an intimate knowledge of their parents’ use and sale
        of controlled substances. The statements are consistent with the
        parents’ admitted use of controlled substances.

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              11. Since his removal from his parents’ home, [L.K.]’s
              behavior at school has drastically improved. He has had no
              behavioral problems.

              12. The parents use controlled substances in the home with the
              knowledge of their children. They refuse to participate in drug
              screens. [L.K.] has experienced extreme behavioral problems.
              The parents have refused to seek treatment for [L.K.]. [Mother]
              has burned [Father]’s clothing and smashed televisions in the
              home. [Father] smashed [Mother]’s cell phone. Clearly, the
              coercive intervention of the court is necessary to ensure the
              health and safety of the children.


      Appellant’s App. at 114-16. This appeal ensued.


                                     Discussion and Decision
[6]   The Parents contend that the evidence is insufficient to support the trial court’s

      determination that the Children are CHINS. Our supreme court has explained

      the nature of a CHINS proceeding and appellate review of a CHINS

      determination 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.R., 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
              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.




      Court of Appeals of Indiana | Memorandum Decision 53A04-1603-JC-711| November 15, 2016   Page 6 of 9
              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.R., 919
              N.E.2d at 105.


      S.S. v. Ind. Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1253-54 (Ind. 2012)

      (footnote omitted).


[7]   Here, the juvenile court issued findings and conclusions sua sponte. Therefore,

      as to the issues covered by the findings, we apply the two-tiered standard of

      whether the evidence supports the findings, and whether the findings support

      the judgment. J.B. v. Ind. Dep’t of Child Servs. (In re S.D.), 2 N.E.3d 1283, 1287

      (Ind. 2014). But we review the remaining issues under the general judgment

      standard, under which a judgment will be affirmed if it can be sustained on any

      legal theory supported by the evidence. Id.


[8]   DCS alleged that the Children are 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


      Court of Appeals of Indiana | Memorandum Decision 53A04-1603-JC-711| November 15, 2016   Page 7 of 9
               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.


       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 at

       1287.


[9]    Here, the Parents contend that the evidence is insufficient to prove either that:

       (1) the Children’s mental condition is seriously impaired or seriously

       endangered as a result of the inability, refusal, or neglect of the parents to

       supply the Children with necessary food, clothing, shelter, medical care,

       education, or supervision; or (2) the Children need care, treatment, or

       rehabilitation that is unlikely to be provided or accepted without the coercive

       intervention of the court. We cannot agree.


[10]   As DCS correctly points out, the Parents do not challenge the juvenile court’s

       findings of fact. Rather, the Parents maintain that: L.K.’s mental condition

       was not seriously impaired or seriously endangered because of the Parents’

       “decision not to put [L.K.] on medication”; there was no evidence that L.K.’s

       Court of Appeals of Indiana | Memorandum Decision 53A04-1603-JC-711| November 15, 2016   Page 8 of 9
       behavioral problems “are attributable” to them; there was no evidence of a

       failure to supervise; there was no evidence that any domestic violence between

       the Parents occurred in the children’s presence; there was no evidence that the

       Parents’ drug abuse affected the children’s necessary care, rehabilitation, or

       treatment; and their refusal to fully comply with services is not sufficient to

       prove that the Children are CHINS. Mother’s Br. at 13-14.


[11]   The Parents’ contentions on appeal amount to a request that we reweigh the

       evidence, which we will not do. Again, the juvenile court found that: L.K. has

       exhibited significant behavioral problems at home and at school, and the

       Parents have refused to seek medical treatment, including behavioral therapy,

       in an attempt to resolve those problems; the Children were aware of the

       domestic abuse between the Parents; the Children were aware of the Parents’

       substance abuse and Father’s marijuana dealing in the home; Father has

       refused to submit to all but one requested drug screen; and L.K.’s behavior has

       improved dramatically since his removal from the Parents’ care. Those findings

       of fact support a determination that the Parents’ actions or inactions have

       seriously endangered the Children, that the Children’s needs are unmet, and

       that those needs are unlikely to be met without the coercive intervention of the

       State. See In re S.D., 2 N.E.3d at 1287. We hold that the evidence is sufficient

       to support the juvenile court’s adjudication of the Children as CHINS.


[12]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.

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