MEMORANDUM DECISION                                                                FILED
                                                                              Mar 31 2016, 8:38 am

Pursuant to Ind. Appellate Rule 65(D),                                             CLERK
this Memorandum Decision shall not be                                          Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
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 APPELLANT                                   ATTORNEYS FOR APPELLEE
Jill M. Acklin                                           Gregory F. Zoeller
McGrath, LLC                                             Attorney General of Indiana
Carmel, Indiana
                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        March 31, 2016
Mi.H. and Ma.H. (Minor                                   Court of Appeals Case No.
                                                         49A05-1509-JC-1280
Children), Children in Need of
Services                                                 Appeal from the Marion Superior
                                                         Court
   and
                                                         The Honorable Marilyn A.
M.H. (Father),                                           Moores, Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         49D09-1504-JC-1463
        v.                                               49D09-1504-JC-1464

The Indiana Department of
Child Services,
Appellee-Plaintiff




Court of Appeals of Indiana | Memorandum Decision 49A05-1509-JC-1280 | March 31, 2016             Page 1 of 9
      Baker, Judge.


[1]   M.H. (Father) appeals the juvenile court’s order declaring his two children,

      Mi.H. and Ma.H., to be children in need of services (CHINS). He argues that

      there is insufficient evidence supporting the CHINS adjudication and the

      dispositional order. Finding the evidence sufficient, we affirm.


                                                         Facts
[2]   Mi.H. was born in June 2006 and Ma.H. was born in September 2007 to Father

      and the children’s mother.1 Father has another child, B.H., with a different

      mother, S.F. In March 2014, B.H. was declared a CHINS because of S.F.’s

      substance abuse and Father’s failure to protect B.H. Throughout B.H.’s

      CHINS case, Father engaged in domestic violence with S.F., repeatedly failed

      to submit to required drug screens, and tested positive for methamphetamine on

      at least one occasion. On June 25, 2015, the Department of Child Services

      (DCS) filed a petition to terminate the parent-child relationship between B.H.

      and Father.


[3]   On April 29, 2015, DCS removed Mi.H. and Ma.H. from Father’s custody and

      placed them in relative care. On May 1, 2015, DCS filed a petition alleging that

      Mi.H. and Ma.H. were CHINS because of Father’s substance abuse. 2 As a

      condition of Father exercising parenting time with the children, the juvenile



      1
          Their mother has not appealed the CHINS adjudication.
      2
          The CHINS petition also contained allegations regarding the children’s mother.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-JC-1280 | March 31, 2016   Page 2 of 9
      court ordered that he participate in random drug screens. Father did not make

      himself available for the drug screens, however, and as of June 29, 2015, no

      drug screens had been successfully administered.


[4]   At the time of the factfinding hearing, Father had been working with a home-

      based therapist since November 2014. The therapist testified that in the weeks

      leading up to the factfinding hearing, Father became less consistent with his

      appointments. She had “concerns about Father’s decision-making and

      interpersonal relationship skills . . . and believes that his poor decision-making

      skills impede his ability to parent his children. She described his home and life

      as ‘chaos,’ with multiple police and CPS calls to his home.” Appellant’s App.

      p. 90.


[5]   S.F., the mother of Father’s other child, continued to test positive for illegal

      substances throughout B.H.’s CHINS case. Father admitted that he had found

      drugs in his home where S.F. had been sleeping, that he knew she had been

      prostituting from his home, and that he believed she had stolen firearms and

      medications from his home. Notwithstanding these ongoing issues, however,

      Father repeatedly allowed her to babysit Mi.H. and Ma.H. and remain in his

      home. After S.F. alleged that a domestic violence incident had taken place in

      April 2015, the juvenile court entered a no contact order, which Father violated

      on at least two occasions.


[6]   At the time of the factfinding hearing, Father was on probation for possession

      of a controlled substance. In B.H.’s CHINS case, Father told the juvenile court


      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-JC-1280 | March 31, 2016   Page 3 of 9
      that he had a prescription for the drugs for which he was arrested. But in the

      instant CHINS case, he claimed that the conviction was the result of an

      employee leaving drugs in his vehicle. Moreover, the juvenile court found

      Father’s answers regarding police calls to his home to be dishonest: “Father

      testified that the police had been called to his residence 3-4 times in the last

      year; however, further testimony demonstrated that the police have been to

      Father’s residence 9 times in the last year[.]” Id. at 91.


[7]   At the June 30, 2015, factfinding, DCS orally moved to have the pleadings,

      including the CHINS petition, conform to the evidence presented at trial, and

      the juvenile court granted the motion.3 The juvenile court issued its order

      adjudicating the children to be CHINS on July 6, 2015. On August 6, 2015, the

      juvenile court held a dispositional hearing and issued a dispositional order the

      same day. The dispositional order required Father to participate with

      homebased case management, random drug screens, and a substance abuse

      assessment. Father now appeals.




      3
       Father states that as a result of this order, this case presents “a unique procedural posture.” Appellant’s Br.
      p. 9. But he does not argue that the juvenile court erred by granting DCS’s motion, nor do we find any
      compelling reason to conclude there was error in this regard.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-JC-1280 | March 31, 2016                Page 4 of 9
                                   Discussion and Decision
                                     I. Standard of Review
[8]   Father argues that there is insufficient evidence supporting the CHINS

      adjudications. 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.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.


              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).


[9]   Here, DCS alleged that the children were CHINS pursuant to Indiana Code

      section 31–34–1–1, which provides as follows:

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-JC-1280 | March 31, 2016   Page 5 of 9
                  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.


[10]   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).


                                                   II. Sufficiency
[11]   Initially, we note that Father’s sole argument on appeal appears to be that there

       are insufficient findings of fact supporting the dispositional order. 4 Indiana




       4
           He does not contest any of the specific services included in the dispositional order.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-JC-1280 | March 31, 2016       Page 6 of 9
Code section 31-34-19-10(a) sets forth the requirements for findings that must

accompany dispositional orders:


        The juvenile court shall accompany the court’s dispositional
        decree with written findings and conclusions upon the record
        concerning the following:
        (1)      The needs of the child for care, treatment, rehabilitation,
                 or placement.
        (2)      The need for participation by the parent, guardian, or
                 custodian in the plan of care for the child.
        (3)      Efforts made, if the child is a child in need of services, to:
                 (A)     prevent the child’s removal from; or
                 (B)     reunite the child with;
                 the child’s parent, guardian, or custodian in accordance
                 with federal law.
        (4)      Family services that were offered and provided to:
                 (A)     a child in need of services; or
                 (B)     the child’s parent, guardian, or custodian;
                 in accordance with federal law.
        (5)      The court’s reasons for the disposition.
        (6)      Whether the child is a dual status child under IC 31-41.


Father does not argue that the dispositional order failed to comply with these

statutory requirements. Instead, he seems to argue that the dispositional order

must contain findings of fact supporting the CHINS adjudication. That is

simply not the case. Nowhere in the statute are such findings required to be

part of a dispositional decree. Consequently, this argument must fail.




Court of Appeals of Indiana | Memorandum Decision 49A05-1509-JC-1280 | March 31, 2016   Page 7 of 9
[12]   Giving Father the benefit of the doubt, we will infer that he intended to argue

       that the findings and evidence supporting the CHINS adjudication are

       insufficient.5 As noted above, DCS presented the following evidence at the

       factfinding hearing:


            Father has a history with DCS, including a pending termination of
             parental rights case regarding another child.
            Although Father was ordered to comply with random drug screens at the
             initial hearing in this case, he had failed to make himself available to do
             so even once in the two months leading up to the factfinding hearing. In
             B.H.’s CHINS case, he repeatedly failed to comply with drug screens and
             tested positive for methamphetamine on at least one occasion.
            Father’s homebased therapist testified that she has concerns about his
             decisionmaking skills and that his home life is extremely chaotic. She
             also stated that Father was becoming more inconsistent in his
             participation with her services.
            Father maintained a relationship with S.F., the mother of his other child.
             S.F. babysat for Mi.H. and Ma.H. and even stayed in the home at times,
             notwithstanding her ongoing drug use, prostituting out of the home, and
             suspected thefts from the home.
            In the year leading up to the factfinding hearing, the police had been
             called out to Father’s home on nine different occasions.
            Father exhibited dishonesty to the juvenile court regarding both his prior
             criminal history and the number of police visits to his home.
            S.F. alleged that she and Father had engaged in an act of domestic
             violence. The court then put a no contact order in place, which Father
             admittedly violated on at least two occasions.




       5
        Father argues that “it is impossible to know the juvenile court’s reasoning in issuing the decision that it
       did.” Appellant’s Br. p. 10. If the “decision” he refers to is the dispositional order, as noted above, he does
       not argue that the order failed to meet the relevant statutory requirements. And if the “decision” is the
       CHINS adjudication, the juvenile court issued a lengthy and detailed order explaining its reasoning in full.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-JC-1280 | March 31, 2016                Page 8 of 9
       This evidence establishes a troubling pattern of behavior on Father’s part. It

       reveals that he ignores court orders, exhibits dishonesty, and chooses to place

       his children in the care of someone who he knows has ongoing drug abuse

       issues and was prostituting herself out of his home. Their lives are chaotic and

       frequently interrupted by police calls and DCS investigations. We find that this

       evidence is sufficient to support the juvenile court’s conclusion that the children

       are CHINS.


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


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-JC-1280 | March 31, 2016   Page 9 of 9
