MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        Mar 12 2020, 9:31 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle                                    Curtis T. Hill, Jr.
Thomasson, Thomasson, Long &                             Attorney General of Indiana
Guthrie, P.C.
Columbus, Indiana                                        Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In that Matter of B.Y., T.H.,                            March 12, 2020
L.A., and A.A., Minor Children                           Court of Appeals Case No.
in Need of Services;                                     19A-JC-2437
T.Y. (Mother),                                           Appeal from the Bartholomew
                                                         Circuit Court
Appellant-Respondent,
                                                         The Honorable Kelly S. Benjamin,
        v.                                               Judge
                                                         The Honorable Heather M. Mollo,
Indiana Department of Child                              Magistrate
Services,                                                Trial Court Cause Nos.
                                                         03C01-1905-JC-2877
Appellee-Petitioner.
                                                         03C01-1905-JC-2878
                                                         03C01-1905-JC-2879
                                                         03C01-1905-JC-2880



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020                     Page 1 of 9
                                            Statement of the Case
[1]   T.Y. (“Mother”) appeals the trial court’s order adjudicating her four minor

      children, B.Y., T.H., L.A., and A.A. (“the Children”) to be Children in Need of

      Services (“CHINS”). 1 Mother raises three issues for our review, which we

      restate as the following two issues:


                 1.       Whether the Indiana Department of Child Services
                          (“DCS”) presented sufficient evidence to show that the
                          Children were CHINS.


                 2.       Whether the trial court’s dispositional order imposed
                          reasonable efforts to preserve and reunify the family.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On May 17, 2019, seven-year-old L.A. and six-year-old A.A. came home from

      school on their school bus but were locked out of their home. It was about 2:20

      in the afternoon, and the heat index that day was near 100 degrees. Neither

      child had water. They waited for two hours before police arrived following a

      neighbor’s phone call. And, once the police were there, L.A. and A.A. waited

      an additional two hours before being escorted to a police station.




      1
          The fathers of the Children do not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020   Page 2 of 9
[4]   This was not the first time the Children had been locked out of their home on a

      school day. On prior occasions, if T.H., one of the older children, were with

      the younger children he would help L.A. climb the fence into the backyard, and

      L.A. would then enter the house through an unlocked back door and open the

      front door for the other children.


[5]   On May 17, as on the prior occasions, Mother was asleep inside the house.

      One of the responding officers, Columbus Police Department Officer Aaron

      Graham, observed her vehicle in the driveway and called every contact number

      he had for Mother, to no avail. He knocked on the front door “to the point of

      almost knocking the door off the hinges” without a response. Tr. Vol. 2 at 66.

      And when L.A. and A.A. directed him to a particular window near where

      Mother usually slept, Officer Graham knocked on the window “to the point of

      almost breaking the glass.” Id. Officer Graham’s attempts to awaken Mother

      were unsuccessful.


[6]   B.Y. was dismissed from school around 3:00 that afternoon and walked home

      after his parents had failed to pick him up. He arrived at the house around 4:00

      that afternoon. Officer Graham then took B.Y., L.A., and A.A. back to the

      police station and contacted DCS, who took custody of the Children. 2 Once

      Columbus Police Department officers were able to contact Mother, they

      arrested her for neglect of a dependent.




      2
          It is not clear when DCS took custody of T.H.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020   Page 3 of 9
[7]   DCS filed its petitions alleging the Children to be CHINS. In its petitions, DCS

      alleged that Mother had endangered the Children due to her inability, refusal,

      or neglect to provide them with proper supervision on May 17 and the prior

      occasions in which the Children had been locked out of the house after school.

      DCS further alleged that law enforcement had reported concerns of drug use

      inside Mother’s home. And DCS stated that it had been unable to verify the

      adequacy of the conditions inside the home.


[8]   At an ensuing fact-finding hearing on DCS’s petitions, Mother acknowledged

      that the family home is not in “the best neighborhood,” and she does not “like

      to keep the key outside.” Id. at 12. She further acknowledged that she was

      asleep inside the house on May 17 when L.A. and A.A. attempted to come

      home from school and that that was not the first time she had slept through the

      Children attempting to come home but being locked out. She added that she

      has trouble sleeping due to a pain from a shoulder injury she sustained several

      years ago but, when she did sleep, she slept heavily.


[9]   Following the fact-finding hearing, the court adjudicated the Children to be

      CHINS based on the “continuation of a pattern of . . . [Mother] being asleep

      when the [C]hildren arrive home from school.” E.g., Appellant’s App. Vol. 2 at

      53. The court further found as follows:


              On multiple occasions, the [C]hildren have been unable to wake
              [Mother] or can do so only after shaking and yelling at [her].
              Similarly, when getting ready for school in the mornings,
              [Mother] sometimes cannot be awakened. While the . . . older
              brother [B.Y.] helps ensure [the other Children] get on the bus on

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020   Page 4 of 9
        time, [B.Y.] himself has missed school because he could not
        wake [his father, who lived with Mother,] up to drive [B.Y.] to
        school. There is a pattern of the [C]hildren and others not being
        able to wake or rouse the parents to care for the [C]hildren. . . .


Id. at 53-54. The court concluded:


        There was evidence of suspected drug use by [Mother] based on
        [her] inability to be awakened. In addition, [the maternal
        grandmother] testified that [Mother] has asked her for pain pills
        in the past. . . . [Mother] . . . ha[s] refused DCS’s requests for
        drug screens. [Mother] was arrested after the first day of hearings
        for alleged theft of medications . . . . However, all of those
        medications were accounted for and there was no direct evidence
        of current drug use. . . .


        Additional evidence was presented that the home was dirty and
        unsatisfactory for the [C]hildren to live there. However, the
        majority of that testimony related to a time at least seven or eight
        months ago, with the more recent testimony from the [C]hildren
        ranging from [the home] being cluttered but with no stale food to
        messy with stale food. Although DCS made some efforts to view
        the home, they were not successful and no motion to compel was
        sought.


        The court finds that[,] although valid concerns about the
        condition of the home and potential drug use were raised, the
        evidence of these concerns was insufficient, at least standing
        alone, to support a finding that the [C]hildren are [CHINS].
        However, the court also finds that [DCS] did meet its burden of
        proving that the [C]hildren are [CHINS] based on . . . [Mother’s]
        unwillingness or inability to provide adequate supervision for the
        [Children].


Id. at 54.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020   Page 5 of 9
[10]   Thereafter, the court entered its dispositional order. In that order, the court

       directed Mother, among other things, to complete a substance abuse evaluation

       and any recommended treatment following that evaluation; submit to random

       drug screens; participate in home-based case management to address keeping an

       appropriate home; and participate in individual counseling. This appeal

       ensued.


                                      Discussion and Decision
                            Issue One: Whether DCS Presented Sufficient
                              Evidence to Show the Children are CHINS

[11]   We first address Mother’s contention that DCS failed to present sufficient

       evidence to show that the Children are CHINS. As our Supreme Court has

       made clear:


               In all CHINS proceedings, “the State must prove by a
               preponderance of the evidence that a child is a CHINS as defined
               by the juvenile code.” In re K.D., 962 N.E.2d 1249, 1253 (Ind.
               2012) (quoting In re N.E., 919 N.E.2d 102, 105 (Ind. 2010)).
               When reviewing a CHINS adjudication, “we do not reweigh
               evidence or judge witness credibility” and will reverse a
               determination only if the decision was clearly erroneous. In re
               D.J., 68 N.E.3d 574, 577-78 (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. at
               578 (internal quotation omitted).


       V.B. v. Ind. Dep’t of Child Servs. (In re Eq.W.), 124 N.E.3d 1201, 1208 (Ind. 2019).




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020   Page 6 of 9
[12]   Here, the trial court concluded that DCS presented sufficient evidence to show

       that the Children’s physical or mental health was seriously impaired or

       seriously endangered as a result of Mother’s inability, refusal, or neglect to

       supply the Children with necessary supervision. See Ind. Code § 31-34-1-1(1)

       (2019). Mother asserts on appeal that the court’s conclusion is erroneous

       because there is no evidence to support the trial court’s findings that the May 17

       incident was part of a pattern or that, on multiple occasions, the Children have

       been unable to wake Mother without yelling at or shaking her. Mother then

       asserts that the May 17 incident was a one-time occurrence that was remedied

       once the Children were able to get back into the house.


[13]   Mother’s arguments are simply incorrect. L.A. and B.Y. each testified to other

       times they had been locked out of the home while Mother slept inside. Indeed,

       in her testimony to the trial court Mother herself acknowledged that the May 17

       incident was not a one-time occurrence and that prior, similar occurrences had

       taken place. Further, L.A. testified that “it was . . . hard” to wake her Mother,

       and to do so the Children “needed to shake [her] a lot and yell a lot.” Tr. Vol. 2

       at 92. The trial court’s findings that the May 17 incident was part of a pattern

       and that to wake Mother the Children had to yell at or shake her are supported

       by the record. And, as Mother’s argument that DCS failed to present sufficient

       evidence is premised on her position that the May 17 incident was a one-time

       occurrence, and that premise is incorrect, we likewise conclude that the trial

       court did not err when it concluded that the Children were CHINS based on




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020   Page 7 of 9
       Mother’s repeated inability, refusal, or neglect to provide the Children with

       appropriate supervision.


                   Issue Two: Whether the Dispositional Order is Appropriate

[14]   Mother next asserts that the court’s dispositional order directs her to participate

       in services that are not related to behavior or circumstances supported by the

       evidence. “Although the juvenile court has broad discretion in determining

       what programs and services in which a parent is required to participate, the

       requirements must relate to some behavior or circumstances that was revealed

       by the evidence.” S.S. v. Ind. Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249,

       1258 (Ind. 2012).


[15]   According to Mother, the court’s order for her to complete a substance abuse

       evaluation and any recommended treatment following that evaluation; submit

       to random drug screens; participate in home-based case management to address

       keeping an appropriate home; and participate in individual counseling are not

       related to behavior revealed by the evidence. In particular, Mother relies on the

       trial court’s statement in its judgment adjudicating the Children to be CHINS

       that “the evidence of these concerns was insufficient.” Appellant’s App. Vol. 2

       at 54.


[16]   Again, we cannot agree with Mother’s reading of the record. The court did not

       say, full stop, that it found DCS’s evidence of Mother’s drug use and an

       inadequate home not credible, nor did the court outright reject DCS’s

       allegations in those regards. Rather, the court said only that the evidence of


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020   Page 8 of 9
       Mother’s alleged drug use and the inadequate home was not, “standing alone,”

       sufficient to support a CHINS adjudication. Id. at 54. In other words, the court

       found that Mother did have issues with drug use that should be addressed and

       that Mother’s home was inadequate—the court simply concluded that those

       concerns were not sufficient in themselves to adjudicate the Children to be

       CHINS.


[17]   The court having then adjudicated the Children to be CHINS based on other

       evidence, we cannot say that the court erred when it directed Mother to

       participate in services aimed at improving her behavior with respect to drug use

       and an inadequate home, including the order to participate in counseling.

       Indeed, part of the court’s findings include its assessment that “[t]here was

       evidence of suspected drug use by [Mother] based on [her] inability to be

       awakened.” Id. We think a dispositional order on these facts that failed to

       account for such a possibility would be questionable.


[18]   In sum, we affirm the trial court’s determination that the Children are CHINS

       and its dispositional order directing Mother to participate in services.


[19]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2437 | March 12, 2020   Page 9 of 9
