MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                Jun 11 2020, 8:55 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




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Brian A. Karle                                            Katherine A. Cornelius
Lafayette, Indiana                                        Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

IN THE MATTER OF:                                         June 11, 2020

K.S. (Minor Child)                                        Court of Appeals Case No.
                                                          19A-JC-2957
A Child in Need of Services
                                                          Appeal from the Marion Superior
       and                                                Court Juvenile Division
                                                          The Honorable Mark A. Jones,
A.H. (Father),                                            Judge
Appellant-Respondent                                      Honorable Beth Jansen, Magistrate
                                                          Trial Court Cause No.
                                                          49D15-1906-JC-1590
        v.

The Indiana Department of
Child Services
Appellee-Petitioner

        and



Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020                     Page 1 of 12
      Child Advocates, Inc.,
      Appellee-Guardian ad Litem




      Altice, Judge.


                                                Case Summary


[1]   A.H. (Father) appeals the trial court’s adjudication of his infant child K.S.

      (Child) as a Child in Need of Services (CHINS).


[2]   We affirm.


                                       Facts & Procedural History


[3]   Child was born to L.S. (Mother) on May 25, 2019. Mother, who suffered from

      untreated mental illness and substance abuse, became overwhelmed caring for

      Child. On June 18, 2019, Mother took Child to a well check and made

      statements to medical staff that prompted an immediate report to the Indiana

      Department of Child Services (DCS).


[4]   Bailey Sandlin, a DCS assessment worker, responded to Methodist Hospital

      that same day and interviewed Mother, who was at the hospital with Child.

      Mother reported to Sandlin that she felt stressed and overwhelmed, especially at

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020   Page 2 of 12
      night with Child. Mother also reported a history of mental illness for which she

      was not currently receiving treatment. Of particular note, Mother indicated

      that she had had thoughts of harming Child by either holding her hand over

      Child’s mouth and nose or throwing her to the ground. Mother also

      acknowledged a history of substance abuse, including methamphetamine.


[5]   Mother reported two potential fathers for Child, Father and A.L. Sandlin

      interviewed both men at the hospital that day. Father told Sandlin that he was

      not sure that he was Child’s father, that he had other children, and that he was

      not sure what his involvement was going to be with Child. Father submitted to

      a drug screen, the results of which were never admitted into evidence at the

      CHINS hearing, but Sandlin testified that she had substance abuse concerns

      related to Father at the time.


[6]   On the evening of June 18, 2019, as a result of her assessment, Sandlin took

      Child into emergency custody. Child was placed in relative care with Mother’s

      aunt (Aunt). Sandlin then filed a CHINS petition.


[7]   Father did not appear at the initial hearing on June 21, 2019, where the court

      determined that Child should remain with Aunt. On July 10, 2019, Father and

      A.L. (the other potential father) appeared for the continued initial hearing. The

      court appointed counsel for the men and ordered them to submit to DNA

      testing to determine paternity. On July 25, 2019, Father was determined to be

      Child’s biological father, and A.L. was dismissed from the case.




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020   Page 3 of 12
[8]    At a pretrial hearing on July 31, 2019, the parties requested mediation, which

       the court ordered. Additionally, the court authorized Aunt to supervise

       parenting time for Father. Father visited with Child twice after this date, with

       the last visit in mid-September. Neither Mother nor Father appeared for the

       mediation on September 4, 2019.


[9]    In the meantime, Mother was charged with possession of cocaine on August

       26, 2019, and then prostitution on September 11, 2019. She failed to appear for

       a hearing in the former criminal case and was arrested and held in jail for most

       of September until bonding out near the end of the month.


[10]   Mother did not appear for the CHINS factfinding hearing on October 2, 2019,

       which was rescheduled for two weeks out due to her absence. Father was

       present with appointed counsel and expressly did not object to the continuance.


[11]   The factfinding took place on October 16, 2019. Mother again did not appear.

       Her counsel’s request to withdraw was granted by the court. Father also did

       not appear, and his counsel did not know Father’s whereabouts and had been

       unable to reach him. The court denied a request for another continuance.


[12]   Bailey Sandlin testified regarding her initial investigation as outlined above.

       Three service providers referred for Mother then testified, indicating that

       Mother had not complied with services since August. Specifically, Mother’s

       homebased caseworker Dekkia Thomas testified that Mother had been

       noncompliant with homebased services since early August, was a no show for a

       scheduled psychological evaluation, and had reported to Thomas that she was

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020   Page 4 of 12
       “fed up with everything” and did not care to reunify with Child. Transcript at

       26. Further, the visitation facilitator testified that Mother had not visited Child

       since August and came to a visit “irate” and “appeared [to be] high.” Id. at 28.

       Mother did not have a permanent residence.


[13]   Aunt testified regarding both Mother and Father. She noted Mother’s drug use

       and indicated that she feared for Child’s safety with Mother. Aunt had last seen

       Mother in August when Mother came to a visit “high, very loud abusive [sic] to

       Aunt and the visiting coordinator.” Id. at 30. With respect to Father, Aunt

       testified that Mother and Father had previously dated for about a year. Father

       had visited Child only twice, with the most recent visit being about a month

       before the factfinding hearing. Aunt indicated that he was attentive and

       appropriate with Child, but she was concerned about him “financially and

       stability wise.” Id. Father had informed Aunt that “his income right now is a

       mess” and “he’s going from job to job.” Id. at 31. Father told Aunt that he was

       trying to become a commercial truck driver, which would require him to be

       away from home and Child for three out of four weeks each month. He asked

       Aunt if she would be willing to keep Child when he was on the road.


[14]   DCS family case manager (FCM) Kimberly Martin, who took over the case on

       October 4, 2019, testified that she had been unable to reach Father despite

       calling him at least five times since that time. He never returned her calls and

       she did not have an address for him, so FCM Martin was unable to determine

       Father’s housing, employment, or financial situation. FCM Martin testified

       that she had seen a report indicating Father had used cocaine, but she

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020   Page 5 of 12
       acknowledged that his recent drug screen showed nothing that concerned her

       regarding his sobriety.


[15]   Based on the evidence presented at the hearing, the trial court adjudicated Child

       a CHINS and set the matter for disposition. Father (as well as Mother) did not

       appear at the scheduled dispositional hearing on November 13, 2019, so the

       court reset the hearing for a week later. Still, Father (and Mother) did not

       appear on November 20, 2019. Father’s counsel indicated that Father was at

       work. With respect to Father, DCS asked the court to order completion of a

       Father Engagement Program and random drug screens. Father’s counsel

       agreed that those services would be appropriate and asked for increased

       parenting time. With respect to parenting time, the GAL indicated that Father

       had only visited Child twice in the last five months and, thus, recommended

       supervised visits. Additionally, FCM Martin noted that she had still been

       unable to reach Father. Ultimately, the court ordered the agreed-upon services

       for Father, authorized increased parenting time upon the recommendation of

       the treatment team, and ordered DCS to make an effort to conduct a home

       study with Father’s assistance. Child remained in relative care.


[16]   Father now appeals, arguing that DCS failed to prove that Child was a CHINS

       pursuant to Ind. Code § 31-34-1-1. Additional information will be provided

       below as needed.


                                           Discussion & Decision




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020   Page 6 of 12
[17]   DCS bears the burden of proving that a child is a CHINS by a preponderance of

       the evidence. In re S.A., 15 N.E.3d 602, 607 (Ind. Ct. App. 2014), clarified on

       reh’g, 27 N.E.3d 287 (2015), trans. denied. On review of a CHINS

       determination, we do not reweigh the evidence or assess witness credibility. Id.

       Rather, we consider only the evidence in favor of the trial court’s judgment and

       all reasonable inferences derived from that evidence. Id.


[18]   Where the trial court enters findings of fact and conclusions, as in this case, we

       apply a two-tiered standard of review, first considering whether the evidence

       supports the factual findings and then whether those findings support the

       judgment. Id. “We will set aside the trial court’s findings and conclusions only

       if they are clearly erroneous and a review of the record leaves us firmly

       convinced that a mistake has been made.” Matter of K.P.G., 99 N.E.3d 677,

       681-82 (Ind. Ct. App. 2018), trans. denied. Findings are clearly erroneous only

       when the record contains no evidence to support them either directly or by

       inference, and a judgment is clearly erroneous if it relies on an incorrect legal

       standard. Id. at 682.


[19]   To meet its burden of establishing Child’s CHINS status, DCS was required to

       prove by a preponderance of the evidence:


               (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 … to supply the child with necessary
               food, clothing, shelter, medical care, education, or supervision:

                        (A) when the parent … is financially able to do so; or


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020   Page 7 of 12
                        (B) due to the failure, refusal, or inability of the parent …
                        to seek financial or other reasonable means to do so; 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.

       I.C. § 31-34-1-1. In sum, I.C. § 31-34-1-1 “requires 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).


[20]   Our Supreme Court has explained:


               [A] CHINS determination establishes the status of a child alone.
               Because a CHINS determination regards the status of the child, a
               separate analysis as to each parent is not required in the CHINS
               determination stage. … [T]he conduct of one parent can be
               enough for a child to be adjudicated a CHINS. Indeed, to
               adjudicate culpability on the part of each individual parent in a
               CHINS proceeding would be at variance with the purpose of the
               CHINS inquiry: determining whether a child’s circumstances
               necessitate services that are unlikely to be provided without the
               coercive intervention of the court. Said differently, the purpose
               of a CHINS adjudication is to protect children, not punish
               parents. The resolution of a juvenile proceeding focuses on the
               best interests of the child, rather than guilt or innocence as in a
               criminal proceeding.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020    Page 8 of 12
       In re N.E., 919 N.E.2d 102, 106 (Ind. 2010) (citations omitted); see also K.P.G.,

       99 N.E.3d at 682 (“Although the acts or omissions of one or both parents can

       cause a condition that creates the need for court intervention, the CHINS

       designation focuses on the condition of the children rather than on an act or

       omission of the parent(s).”).


[21]   Here, DCS established that prior to removal, Child was in the care of Mother

       who was suffering from untreated mental illness and was overwhelmed caring

       for Child. Mother reported thoughts of harming Child by suffocation or by

       throwing her to the ground. Additionally, Mother has a history of substance

       abuse and was arrested and criminally charged twice during the underlying

       proceedings. Aside from the first month or so following Child’s removal,

       Mother has not participated in services and she failed to appear for the

       September mediation or any subsequent CHINS hearings, including the

       factfinding hearing in October and dispositional hearing in November.


[22]   Though a tad more involved in the CHINS matter, Father similarly failed to

       appear for the mediation, factfinding hearing, and dispositional hearing. He

       also did not return any of the numerous calls made to him by FCM Martin,

       who had only a phone number for him and no address. By the time of the

       factfinding hearing (and the subsequent dispositional hearing), Father had only

       visited with Child twice. He was loving and appropriate with Child but

       expressed to Aunt serious concerns regarding his current financial stability.

       Instead of continuing to jump from job to job, Father told Aunt that he was



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020   Page 9 of 12
       trying to become a commercial truck driver, which would require him to be on

       the road for three out of four weeks each month.


[23]   On appeal, Father challenges portions of two of the trial court’s findings. First,

       at the end of Finding #8, the trial court indicated that Sandlin, during her initial

       assessment, “had concerns about [Father’s] drug use.” Appendix at 138. This

       finding is supported by the evidence, as Sandlin expressed this general concern

       during her testimony. Moreover, we observe that the court made no findings

       regarding actual drug use by Father. In fact, in Finding #16, the trial court

       found that Mother needed, among other services, drug screens and that Father

       required only homebased casework.


[24]   Father also challenges the portion highlighted below of Finding #14:


               [Aunt] is the relative care giver for this child. [Aunt] states that
               the Mother is currently abusing drugs and she lacks the patience
               necessary to properly parent the child. [Aunt] has concerns for
               the safety of the child if placed in the care of Mother. [Aunt]
               knows [Father] and she knows that financially he cannot provide for this
               child. [Aunt] and [Father] have talked about the child remaining
               in her care while [Father] was on the road. [Father] last saw the
               child about one month ago and although he was appropriate
               during visits, his absence today is problematic.


       Id. (emphasis supplied). Aunt testified that she knew Father and that he had

       discussed his financial situation with her. Based on these discussions, Aunt

       expressed concern regarding Father’s financial stability and testified that

       Father’s “income right now is a mess” and that “he’s going from job to job.”



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020   Page 10 of 12
       Transcript at 31. In light of Aunt’s testimony regarding Father’s current

       financial stability, we cannot say that the court’s finding is clearly erroneous.


[25]   The facts and circumstances before the trial court amply established that Child

       is a CHINS. Indeed, on appeal, Father does not dispute that Child was

       seriously endangered while in Mother’s care or that Mother is unlikely to

       provide Child’s needed care without court intervention. Father, rather, suggests

       that he can provide the care Child needs and do so without court intervention.

       We certainly hope that Father can do so in the near future, but the evidence

       establishes that this is not yet the case. As outlined above, Father had (1)

       visited Child only twice during the CHINS proceedings and expressed

       significant financial instability to Aunt during those visits, (2) not responded to

       calls from FCM Martin, making it difficult for her to assess his current ability to

       care for Child, and (3) not attended the factfinding hearing (or the prior court-

       ordered mediation or the subsequent dispositional hearing). DCS established

       by a preponderance of the evidence that Father is unlikely to meet Child’s needs

       absent coercive court intervention.1




       1
         Father’s attempt to liken this case to S.A., 15 N.E.3d 602, is unavailing. In S.A., the father had been absent
       for the first two years of his child’s life while serving active duty in the United States Navy. When the child
       was almost two years old, a CHINS petition was filed due to the mother’s drug use and neglect. Thereafter,
       the father established paternity and, after being discharged from the Navy later that month, moved back to
       Indiana, found employment and housing, contacted DCS and the CASA, and visited his child daily. The
       father also attended a child and family team meeting with DCS before the factfinding hearing. The father
       testified at the factfinding hearing and expressed an ability and desire to parent his child. Based on the
       evidence, this court reversed the CHINS adjudication because DCS had failed to establish that the father was
       not likely to meet his child’s needs absent coercive court intervention. Unlike the father in S.A., Father’s
       actions throughout the CHINS case, including his lack of communication with DCS and his failure to attend


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020                     Page 11 of 12
[26]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       the factfinding hearing, demonstrate an inability or unwillingness to care for Child and provide for Child’s
       needs without the coercive intervention of the court.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2957 | June 11, 2020                    Page 12 of 12
