MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be                                   Sep 10 2019, 8:44 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Don R. Hostetler                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: G.B.-S., Minor                         September 10, 2019
Child,                                                   Court of Appeals Case No.
                                                         19A-JC-578
C.S., Father,
                                                         Appeal from the Marion Superior
Appellant-Respondent,                                    Court
        v.                                               The Honorable Mark Jones, Judge
                                                         The Honorable Rosanne Ang,
Indiana Department of Child                              Magistrate
Services,                                                Trial Court Cause No.
Appellee-Petitioner, and                                 49D15-1810-JC-2521

Child Advocates, Inc.,

Guardian ad Litem.



Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019               Page 1 of 11
[1]   C.S. (“Father”) appeals the trial court’s order determining that G.B.-S. is a child

      in need of services (“CHINS”). Father raises two issues which we consolidate

      and restate as whether the evidence is sufficient to support the court’s

      determination. We affirm.


                                      Facts and Procedural History

[2]   On October 15, 2018, the Indiana Department of Child Services (“DCS”) filed

      a verified petition alleging that G.B.-S., born on August 20, 2004, was a CHINS

      and that Father failed to provide G.B.-S. with a safe, stable, and appropriate

      living environment free from substance abuse. The petition also alleged that

      Father consumes alcohol in excess, breaks items in the home, is verbally

      abusive to the child when Father is under the influence, has forced the child to

      leave home when he is intoxicated, and that the child’s mother (“Mother”) had

      not successfully demonstrated an ability and willingness to appropriately parent

      the child. That same day, the court ordered continued removal of G.B.-S. from

      Mother and placement on a temporary trial visit with Father. The court also

      ordered that Father consume no alcohol, be placed on a track group monitor,

      attend Alcoholics Anonymous meetings, and obtain a sponsor.


[3]   On January 2, 2019, DCS filed a Request for Taking or Continued Custody and

      Motion for Detention Hearing and attached an affidavit of Family Case

      Manager Lolita Burts (“FCM Burts”) who asserted that FCMS Erin Bray-

      Mullens received a call from the Indiana Child Abuse Hotline on December 28,

      2018, reporting that Indianapolis Metropolitan Police Officer Maria Ochon was

      at Father’s home and stated that Father was intoxicated and had a physical
      Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 2 of 11
      altercation with G.B.-S., and that G.B.-S. had told Officer Ochon that he had

      been struck in the back during the altercation. FCM Burts also stated that

      Father contested that he needed help from DCS because G.B.-S. was out of the

      home and would not be coming back. That same day, the court granted the

      motion and ordered the continued removal of G.B.-S. from Father’s home and

      authorized the continued placement of the child in relative care.


[4]   On January 18, 2019, the court held a fact-finding hearing. At the beginning of

      the hearing, Father’s counsel stated that Father indicated to her that he could

      not make it to the hearing because he had to work and might have a warrant

      and asked if he could appear telephonically. The court asked: “So he’s asking

      to telephonically appear at a court hearing regarding his child because he has a

      warrant and did not want to step into this building?” Transcript Volume II at 4.

      Father’s counsel answered: “That’s how I understood and he said he needs to

      work.” Id. at 5. After some discussion, the court observed that Father had

      known about the hearing since November 16th and denied the request to

      appear telephonically.


[5]   When asked about the circumstances that led to DCS’s involvement with the

      family, FCM Burts answered: “I believe that there were altercations with

      [Father] and [G.B.-S.] and substance abuse.” Id. at 8-9. She testified that

      “[e]very conversation that I have had with [Father] about services he has

      explicitly stated that he will not be participation [sic] in any more services with

      DCS.” Id. at 9. She answered affirmatively when asked if it was DCS’s belief

      that Father had some issues regarding alcohol use or substance abuse. When

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 3 of 11
      asked why G.B.-S. was placed in relative care with his maternal grandparents,

      she stated: “There was an altercation in the home with [Father] where the

      police [were] called due to a physical altercation.” Id. at 10. She indicated that

      she spoke to Father about the incident and he “denied any type of physical

      altercation and said that the altercation took place due to him punishing [G.B.-

      S.] for his phone privileges and internet privileges.” Id. at 11. She testified that

      Father left voicemails for her in which he slurred his words and sent her text

      messages in which he called her a “stank ass skank” and a loser and told her

      that she was fired numerous times and that “he would make sure that [she]

      would never be able to f--- anybody again.” Id. at 13. She testified that, when

      she asked Father about the text messages and voicemails, he did not recall

      making them. Id. She also indicated that she spoke with Mother who indicated

      to her that she thought Father had a substance abuse issue and had harassed

      her.


[6]   FCM Burts indicated she believed it was in G.B.-S.’s best interest to remain out

      of the home and that Father needs to comply with services in order to remedy

      the safety concerns. She testified that she spoke with Mother and that “[d]ue to

      the physical altercation [Mother] feels that he’s not safe with [Father].” Id. at

      12. On cross-examination by Mother’s counsel, she testified that Father

      previously told someone that he had issues with alcohol.


[7]   At some point, Father’s counsel stated that Father just contacted her and

      requested a continuance, and the court denied the request. During cross-

      examination by Father’s counsel, FCM Burts testified that she had some safety

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 4 of 11
      concerns regarding his excessive consumption of alcohol. When asked if she

      had a reason to believe that Father has substance abuse issues, she answered:

      “Well we did have him on the monitors, but he has stopped doing the

      breathalyzer monitor so there’s no way for me to actually tell unless I actually

      physically see him drinking.” Id. at 16. She stated that Father first stopped

      using the alcohol monitor around December 22nd, which “was right after I

      took on the case and then I went to go see him on the 27th in regards to the

      altercation that happened the prior weekend and then there was another

      altercation that Friday the 28th and then after that he stopped completely.” Id.

      at 17. She testified that she spoke with Father and G.B.-S. “about the

      altercation, but it didn’t seem like there was any animosity or static between the

      two while I was there.” Id. at 18. She testified that she did not find any red

      flags or safety concern regarding Father’s residence.


[8]   On redirect examination, she indicated that Father’s non-compliance with

      services to ensure sobriety is a safety concern and that “[t]he fact that [Father]

      didn’t recall those conversations and text messages led me to believe that he

      might have been under the influence.” Id. at 22. She also answered

      affirmatively when asked if the case was opened because Father is an alcoholic

      and refuses to obtain help.


[9]   G.B.-S.’s grandfather testified that G.B.-S. was placed with him on December

      28th. He testified that Father had “been mostly threatening and harassing my

      wife over [G.B.-S.] and saying he was going to take – take him out of parish

      school and that if she testified against him he would never – she would never

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 5 of 11
see him again.” Id. at 24-25. He also stated: “[T]hey called us from the

Cincinnati Hospital that they had been – they were on a day trip to Kings Island

and his – they were in the line for the first ride and [Father] started getting

woozy and passed out, so they – they took him to the hospital. Basically, he

was drunk . . . .” Id. at 26. When asked if he knew there was a problem at that

point, he answered: “We’ve known there was a problem for a long time, but

you know at ten o’clock in the morning and – and, you know, clear to

Cincinnati and passing out drunk at that point.” Id. He indicated he was very

concerned for G.B.-S.’s safety. He also stated that he provided necessities such

as pencils and school clothes because Father would not provide those things.

When asked why he would say that it was in G.B.-S.’s interest to be with him,

he answered:


        [Father] is dangerous. Not only – I thought it was mostly just the
        drinking that he – that – get him going so much, but in reality it –
        according to . . . he was sober for six weeks or so in there and it
        was still much of the same. He’d call up and – he’d call up and
        say, “Come and get [G.B.-S.]”, and then we get there and he
        wouldn’t let him go and all of his stuff would be out on the front
        lawn and, “No, you can’t pick up cause it’s not yours”, and . . . .


Id. at 27-28. He stated that he did not believe that Father was providing a safe

and stable home for G.B.-S., that Father’s home was “so unsettled,” that G.B.-

S. was “constantly in turmoil over there,” and that G.B.-S. makes excuses for

Father’s behavior such as “it’s because of the Court or its because of the

drinking . . . .” Id. at 28.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 6 of 11
[10]   On January 18, 2019, the court entered an Order Regarding Children in Need

       of Services which stated:


               The Court finds the following by the preponderance of the
               evidence:

               1. [G.B.-S.] is 14 years of age.

                                                     *****

               3. [Father] has a history of alcohol abuse and intoxication in the
               presence of [G.B.-S.].

               4. At the time of the filing of this cause of action, there were
               concerns for [Father’s] abuse of alcohol and physical abuse of
               [G.B.-S.].

               5. Since the filing of this matter, [Father] has engaged in
               excessive alcohol consumption while caring for [G.B.-S.] and has
               physically abused [G.B.-S.] on at least two occasions.

               6. On December 28, 2018, [G.B.-S.] was placed in the care of his
               maternal grandparents due to his continued abuse.

               7. Since [G.B.-S.] was removed from [Father’s] care, [Father]
               has refused to engage in any substance abuse treatment.

               8. Since placement in relative care, [Father] has been harassing
               the caregivers of the children. The caregivers of [G.B.-S.] believe
               [Father] to be dangerous.

               9. [Father] exhibits erratic behavior when not believed to be
               under the influence of alcohol.

               10. In addition to the substance abuse treatment, the DCS would
               also like [Father] to engage in a psychological evaluation to
               address mental health needs.



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 7 of 11
               11. [Mother] does not believe that [G.B.-S.] is safe in the care of
               [Father]. Additionally, [Father] has consistently harassed
               [Mother]. [Mother] is in agreement with [G.B.-S.] remaining in
               his current relative placement.

               12. [G.B.-S.’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. [G.B.-S.] is seriously endangered by
               [Father’s] excessive use of alcohol, untreated mental health issues
               and abuse.

               13. [G.B.-S.] needs care, treatment, or rehabilitation that the
               child is not receiving and is unlikely to be provided or accepted
               without the coercive intervention of the Court. As [Father] has
               refused to engage in treatment, the intervention of this Court is
               necessary to compel [Father] to engage. Therefore, the Court
               finds [G.B.-S.] to be a child in need of services as alleged in the
               petition of the DCS.


       Appellant’s Appendix Volume II at 99-100. On February 8, 2019, the court

       entered a dispositional decree.


                                                    Discussion

[11]   The issue is whether sufficient evidence supports the trial court’s determination

       of G.B.-S.’s status as a CHINS. In reviewing a trial court’s determination that a

       child is in need of services, we neither reweigh the evidence nor judge the

       credibility of witnesses. In re S.D., 2 N.E.3d 1283, 1286-1287 (Ind. 2014), reh’g

       denied. Instead, we consider only the evidence that supports the trial court’s

       decision and reasonable inferences drawn therefrom. Id. at 1287. As to issues

       covered by findings, we apply the two-tiered standard of whether the evidence

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 8 of 11
       supports the findings and whether the findings support the judgment. Id. We

       review 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. “We will reverse a CHINS determination only if it was

       clearly erroneous.” In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 578

       (Ind. 2017). A decision is clearly erroneous if the record facts do not support

       the findings or if it applies the wrong legal standard to properly found facts. Id.


[12]   Ind. Code § 31-34-1-1 provides:


               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.


       (Subsequently amended by Pub. L. No. 198-2019, § 8 (eff. July 1, 2019)).


[13]   The CHINS statute does not require that a court wait until a tragedy occurs to

       intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Rather, a

       child is a CHINS when he or she is endangered by parental action or inaction.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 9 of 11
       Id. The purpose of a CHINS adjudication is not to punish the parents, but to

       protect the child. Id.


[14]   Father argues that DCS did not show by a preponderance of the evidence that

       his actions seriously endangered his son. He asserts DCS did not provide

       evidence that he abused alcohol or G.B.-S. Specifically, he contends that “[t]he

       ‘belief’ and conjecture of the FCM is not evidence” and “[t]he Grandfather’s

       testimony about an unidentified telephone caller from an unidentified

       Cincinnati hospital about an alleged incident at an amusement park (not

       witnessed by Grandfather) is also not evidence.” Appellant’s Brief at 11. He

       also argues that DCS failed to show that G.B.-S.’s needs were unmet and

       asserts that FCM Burts observed that the child had his own bed, there was food

       at the residence, and there was no red flag or safety concern regarding the

       suitability of his residence. DCS argues that the trial court’s findings of fact are

       not clearly erroneous and support the conclusion that G.B.-S. is a CHINS.


[15]   The record reveals FCM Burts’s testimony regarding the altercations between

       Father and G.B.-S., Father’s refusal to participate in services, his slurring of

       words and failure to remember his text messages and voicemails, his previous

       statement that he had issues with alcohol, and her safety concerns in light of his

       excessive consumption of alcohol. The court heard the testimony of G.B.-S.’s

       grandfather regarding an incident in which Father passed out drunk in the

       morning, Father’s failure to provide necessities, his concern for G.B.-S.’s safety,

       G.B.-S.’s excuses for Father’s behavior, Father’s behavior in calling him and

       requesting that he pick up G.B.-S. only to later state that he could not pick him

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 10 of 11
       up, Father’s home as “so unsettled,” and G.B.-S. as “constantly in turmoil over

       there.” Transcript Volume II at 28. Based upon the evidence and testimony

       presented at the fact-finding hearing and in light of the unchallenged findings,

       we cannot say that the trial court’s findings of fact, conclusions, and judgment

       are clearly erroneous.


[16]   For the foregoing reasons, we affirm the trial court’s determination that G.B.-S.

       is a CHINS.


[17]   Affirmed.


       Altice, J., and Tavitas, J, concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-578 | September 10, 2019   Page 11 of 11
