                                                    Dec 19 2013, 10:17 am



FOR PUBLICATION
ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

CAROLYN J. NICHOLS                              GREGORY F. ZOELLER
Noblesville, Indiana                            Attorney General of Indiana

                                                ROBERT J. HENKE
                                                CHRISTINE REDELMAN
                                                Office of the Attorney General
                                                Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF:                               )
J.C. and A.M.C. (Minor Children),               )
CHILDREN IN NEED OF SERVICES, and               )
                                                )
A.K.C. (Mother),                                )
                                                )
      Appellant/Respondent,                     )
                                                )
             vs.                                )    No. 29A04-1305-JC-216
                                                )
INDIANA DEPARTMENT OF                           )
CHILD SERVICES,                                 )
                                                )
      Appellee/Petitioner.                      )


                     APPEAL FROM THE HAMILTON CIRCUIT COURT
                              The Honorable Paul A. Felix, Judge
                      The Honorable Todd L. Ruetz, Master Commissioner
                   Cause Nos. 29C01-1210-JC-1559 and 29C01-1210-JC-1560

                                    December 19, 2013

                              OPINION - FOR PUBLICATION

CRONE, Judge
                                             Case Summary

        A.K.C. (“Mother”) appeals a trial court adjudication designating her two sons as

children in need of services (“CHINS”). Finding the evidence sufficient to support J.C.’s

designation as a CHINS, we affirm with respect to J.C. Finding the evidence insufficient

with respect to A.M.C., we vacate his designation as a CHINS.

                                   Facts and Procedural History1

        Mother has two sons, J.C., born March 1997, and A.M.C., born April 2001. In

December 2011, high school freshman J.C. was arrested and charged with possession of drug

paraphernalia. In March 2012, Mother signed an agreement pursuant to which J.C. would

receive six months of informal probation, in return for which he would not be expelled,

subject to abiding by the conditions contained in the agreement. The conditions included

attending substance abuse assessments and counseling and meeting monthly with his

probation officer, Amy Turean. When J.C. failed to appear for his monthly meeting in June

2012, Officer Turean phoned Mother and reminded her that J.C.’s failure to attend could

result in his being turned over to the prosecutor for formal probation. J.C. attended his July

meeting with Officer Turean but failed to attend his August meeting.

        In the fall of 2012, J.C. (then a sophomore) and A.M.C. (then age eleven) were truant

for several days. As a result, Officer Turean and the Carmel police conducted a welfare

check at the home. Both boys were home, and Mother was not. J.C. said that he was ill, did


        1
          The statement of facts in Mother’s brief is argumentative. We remind Mother’s counsel that the
statement of facts section of an appellant’s brief shall not contain subjective argument. Ind. Appellate Rule
46(A)(6), -(8); New v. Pers. Representative of Estate of New, 938 N.E.2d 758, 765 (Ind. Ct. App. 2010), trans.
denied (2011).

                                                      2
not have clean clothes to wear, and had been bullied at school. Officer Turean phoned

Mother, who never responded to the call. When J.C. told the probation officer and school

guidance counselor that he had considered suicide and had engaged in cutting himself,

Officer Turean phoned Mother again and instructed her to take J.C. to a nearby hospital for a

mental health evaluation. Mother complied.

       The Department of Child Services (“DCS”) filed CHINS petitions for J.C. and A.M.C.

in October 2012, citing both boys’ truancy and citing J.C.’s probation, substance abuse,

mental health issues, suicidal ideations, self-mutilation, and consternation associated with

impregnating his girlfriend. The petitions also cited Mother’s failure to communicate with

school personnel and J.C.’s probation officer and her nonresponsiveness to their phone calls

concerning the needs of the children.

       Officer Turean extended J.C.’s informal probation for three months. J.C. admitted to

Officer Turean that he had experimented with illegal drugs during his probation. After

numerous negative drug screens, J.C. tested positive for marijuana and amphetamines in

November and December 2012. Eventually, Officer Turean referred him to the prosecutor

for formal probation.

       Following a factfinding hearing in February 2013 and a dispositional hearing in April

2013, the trial court issued dispositional orders designating both J.C. and A.M.C. as CHINS.

Mother now appeals the CHINS determinations for both boys. Additional facts will be

provided as necessary.




                                             3
                                    Discussion and Decision

       Mother claims that the trial court erred in designating J.C. and A.M.C. as CHINS. In

a CHINS proceeding, we review for clear error. In re K.D., 962 N.E.2d 1249, 1253 (Ind.

2012). In conducting our review, we neither reweigh evidence nor judge witness credibility;

rather, we consider only the evidence and reasonable inferences most favorable to the trial

court’s decision. Id.

       In a CHINS proceeding, the State bears the burden of proving by a preponderance of

the evidence that a child meets the statutory definition of a CHINS. In re N.E., 919 N.E.2d

102, 105 (Ind. 2010). To meet its burden of establishing CHINS status, the State must prove

that the child is under age eighteen,

       (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.

Ind. Code § 31-34-1-1.

       A CHINS designation focuses on the condition of the child rather than on an act or

omission by the parent. N.E., 919 N.E.2d at 105. Whereas the acts or omissions of one

parent can cause a condition that creates the need for court intervention,

       [a] CHINS adjudication can also come about through no wrongdoing on the
       part of either parent, e.g., where a child substantially endangers the child’s

                                                4
       own health or the health of another individual; or when a child is adjudicated a
       CHINS because the parents lack the financial ability to meet the child’s
       extraordinary medical needs.
              While we acknowledge a certain implication of parental fault in many
       CHINS adjudications, the truth of the matter is that a CHINS adjudication is
       simply that—a determination that a child is in need of services. Standing alone,
       a CHINS adjudication does not establish culpability on the part of a particular
       parent. Only when the State moves to terminate a particular parent’s rights
       does an allegation of fault attach. We have previously made it clear that
       CHINS proceedings are “distinct from” involuntary termination proceedings.
       The termination of the parent-child relationship is not merely a continuing
       stage of the CHINS proceeding. In fact, a CHINS intervention in no way
       challenges the general competency of a parent to continue a relationship with
       the child.

Id. (citations omitted). Because each CHINS determination is focused on the condition of the

individual child, we address Mother’s children separately.

                                             I. J.C.

       Mother asserts that the evidence is insufficient to support the trial court’s designation

of J.C. as a CHINS. In its CHINS petition, DCS made the following allegations with respect

to J.C.:

       a.)    On or between 8/13/12 and 9/11/12, the child has missed approximately
              half of the scheduled school days, without authorization or excuse.

       b.)    The child is on probation for a substance abuse juvenile delinquency
              true finding, and self-reports continued use of illegal drugs.

       c.)    The child has engaged in self-harming behaviors, including cutting
              himself. He expresses suicidal thoughts, and is not appropriately
              utilizing mental-health medications to address his current diagnosis of
              Major Depressive Disorder.

       d.)    The child frequently leaves the family home without permission, and
              remains away from the home without reporting his whereabouts or
              when he will return. The child is also expecting the birth of a child


                                               5
               through a high-school girlfriend, and is overwhelmed at the prospect of
               his pending parental responsibilities.

       [e.)]   The child’s mother does not engage with treatment providers, the
               child’s probation officer, or the child’s school, to address the numerous
               issues that the child has expressed or exhibits. She has failed to
               participate in communication with DCS, the probation officer, or the
               school counselors, and has failed to fulfill parental obligations.

Appellant’s App. at 42-43.

       The record shows that in December 2011, J.C. was arrested and charged with

possession of drug paraphernalia. In March 2012, he was placed on a six-month informal

probation, subject to certain conditions. If he met the conditions, he would not be expelled

from school. Mother signed an agreement taking responsibility for helping J.C. complete the

requirements of his informal probation, i.e., completing a drug and alcohol assessment,

writing a paper, and meeting with his probation officer monthly. Mother failed to bring J.C.

to two of his summer appointments with Officer Turean. The officer testified that she had

left unreturned voicemail messages for Mother. She also testified that J.C. had admitted to

experimenting with drugs such as LSD, peyote, and marijuana during his probation period.

His drug screens came back negative until November and December 2012, when he tested

positive for marijuana and amphetamines. His informal probation was deemed unsuccessful,

and he was eventually referred to the prosecutor’s office for formal probation. To stay in

good standing at school, J.C. was required to meet regularly with a guidance counselor and to

participate in drug treatment and community service. Mother took him to the drug treatment

program, which he eventually completed. The school counselor testified that Mother was

difficult to reach and was unresponsive when she called to inquire about J.C.’s ten-day

                                               6
truancy. The DCS family case manager also reported difficulty in getting Mother to return

his phone calls. With respect to J.C.’s mental health and depression issues, J.C. told his

counselor and probation officer that he had been suicidal and had engaged in cutting (self-

mutilation). Mother did respond to Officer Turean’s instructions to take J.C. for a mental

health evaluation.

       Mother admits that J.C. has had a troubled past and made poor choices. However, she

claims that court intervention is not necessary to ensure that his problems are addressed. As

support, she cites her efforts to take him to drug treatment and mental health programs and

evaluations as evidence of her vigilance in addressing his problems. In this vein, we note

that the prevailing theme throughout the testimony by the probation officer, counselors, and

family case manager illustrated Mother’s pattern of poor communication and failure to

respond to messages concerning J.C.’s treatments, school attendance, and legal

circumstances. Notwithstanding, we reiterate that a CHINS determination is not focused

primarily on the parent’s acts or omissions, but rather, on the child’s condition. Moreover, to

the extent that she challenges the evidence concerning J.C.’s impregnating his girlfriend,

testing positive for drugs, or physically harming himself, she invites us to reweigh evidence

and judge witness credibility, which we may not do.

       In short, the evidence supports the trial court’s designation of J.C. as a CHINS.

Consequently, we affirm the trial court in this respect.




                                              7
                                        II. A.M.C.

      Mother also asserts that the evidence is insufficient to support the trial court’s

designation of A.M.C. as a CHINS. In its CHINS petition, DCS made the following

allegations with respect to A.M.C.:

      a.)    On or between 8/13/12 and 9/11/12, the child has missed approximately
             seven scheduled school days, without authorization or excuse.

      b.)    The child’s sibling is on probation for a substance abuse juvenile
             delinquency true finding, and self-reports continued use of illegal
             drugs.

      c.)    The child’s sibling has engaged in self-harming behaviors, including
             cutting himself. He [the sibling] expresses suicidal thoughts, and is not
             appropriately utilizing mental-health medications to address his current
             diagnosis of Major Depressive Disorder.

      d.)    The child’s sibling frequently leaves the family home without
             permission, and remains away from the home without reporting his
             whereabouts or when he will return. The child[’s sibling] is also
             expecting the birth of a child through a high-school girlfriend, and is
             overwhelmed at the prospect of his pending parental responsibilities.

      [(e.)] The child’s mother does not engage with treatment providers, the
             sibling’s probation officer, or the child’s school, to address the
             numerous issues that the sibling has expressed or exhibits. She has
             failed to participate in communication with DCS, the probation officer,
             of the school counselors, and has failed to fulfill parental obligations.

Id. at 44-45 (emphases added).

      We reiterate that each CHINS determination is very specific to the condition of that

particular child. Here, both of the children’s CHINS petitions emphasize J.C.’s problems of

substance abuse, depression, unknown whereabouts, and girlfriend’s pregnancy. The only




                                             8
allegation in A.M.C.’s petition that pertains directly to A.M.C. is his seven-day truancy.2 The

record is devoid of evidence indicating that his absences for a relatively brief period seriously

endangered him or that truancy has continued to be a problem for A.M.C. Likewise, neither

the petition nor the evidence reveals any specific ways in which J.C.’s problems with

substance abuse, depression-related behaviors, or impending fatherhood have had a

dangerous or negative impact on A.M.C. Without such evidence, there is no basis for

adjudicating A.M.C. a CHINS.

        Simply put, DCS failed to meet its burden of demonstrating that A.M.C.’s condition

was seriously endangered. Based on the foregoing, we conclude that the trial court clearly

erred in designating A.M.C. as a CHINS. Accordingly, we vacate the CHINS adjudication

with respect to A.M.C.

        Affirmed in part and vacated in part.

BAKER, J., and NAJAM, J., concur.




        2
          The State admits that “the only evidence regarding child A.M.C. is that the child missed seven days
of school in September of 2012 and had a skin condition that needed treatment.” Appellee’s Br. at 12.

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