MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Jun 15 2018, 10:46 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Luisa M. White                                             Curtis T. Hill, Jr.
Luisa White Law, LLC                                       Attorney General of Indiana
Lafayette, Indiana
                                                           Robert J. Henke
                                                           Abigail R. Recker
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of N.M. (Minor                            June 15, 2018
Child),                                                    Court of Appeals Case No.
                                                           17A-JC-3052
M.Y. (Paternal Grandmother)1
                                                           Appeal from the Tippecanoe
Appellant-Respondent,                                      Superior Court
        v.                                                 The Honorable Faith A. Graham,
                                                           Judge
Indiana Department of                                      The Honorable Tricia L.
Child Services,                                            Thompson, Juvenile Magistrate
Appellee-Petitioner.                                       Trial Court Cause No.
                                                           79D03-1706-JC-138




1
 A.M. (“Father”) and S.E. (“Mother”) did not file briefs on appeal. However, pursuant to Indiana Appellate
Rule 17(A), a party of record in the trial court shall be a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 17A-JC-3052 | June 15, 2018                        Page 1 of 10
      Mathias, Judge.


[1]   M.Y. (“Grandmother”) appeals the Tippecanoe Superior Court’s order

      determining that Grandmother’s thirteen-year-old grandson N.M. is a child in

      need of services (“CHINS”). Grandmother argues that the trial court erred in

      determining that N.M. is a CHINS raising three issues for our review, which we

      consolidate and restate as whether there was sufficient evidence to support the

      CHINS adjudication.


[2]   We affirm.


                                  Facts and Procedural History
[3]   N.M. was born to S.E. (“Mother”) and A.M. (“Father”) in 2003. Grandmother

      is N.M.’s paternal grandmother. Father and paternal Uncle (“Uncle”) have

      lived with Grandmother for the past eight to ten years. Tr. p. 29. According to

      Father, Mother has not seen N.M. since he was six years old. Id. at 30. Mother

      has a history of substance abuse-related criminal offenses. Id. at 98.


[4]   When N.M. was approximately two years old, Father was imprisoned for

      “breaking and entering.” Id. at 31. Father has also been convicted of possession

      of marijuana and admits to current marijuana use. Id. While incarcerated,

      Father entered into an agreement with Grandmother, allowing her to care for

      N.M. Id. Grandmother has been N.M.’s caregiver for the majority of his life. Id.

      at 37–38.




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[5]   Grandmother admits that N.M. needs counseling, but she has not obtained

      counseling for N.M. on her own and has failed to take him to intake

      appointments. Appellant’s App. p. 37. Grandmother claims she is unable to

      take N.M. to appointments due to lack of transportation, but she allowed Uncle

      to take her car and is able to find transportation to see her sons in

      Crawfordsville. Id.


[6]   In May 2017, DCS received a report that N.M. was a victim of abuse and

      neglect, naming Father as the alleged perpetrator. Id. 19–21. Specifically, after

      N.M. refused to clean his room, he walked across the street to his great-

      grandmother’s house. Tr. p. 24. Father followed N.M. and dragged him down

      two steps and across the street by his leg. Id. at 24–25. Father alleged that he

      asked multiple times while dragging N.M., if he “wanted to get up and walk

      now.” Id. Father admits that it was “[p]robably not the best course of action . . .

      but it was the only option [N.M.] left [him] with.” Id. at 25. As a result from

      being dragged across the street, N.M. suffered a bruise and scrapes. Id. at 26.

      Father stated that he does not want a relationship with N.M. “unless [he] is

      fixed.” Appellant’s App. p. 36.

[7]   On June 12, 2017, DCS filed its petition alleging that N.M. was a CHINS

      because of neglect and abuse. Id. at 19–21. In its petition, DCS alleged that:


              5. [Grandmother] believes the family and child [needs] services,
              and that [N.M.], specifically, needs help with behavioral issues.

              6. [N.M.] participated in a forensic interview and disclosed that
              his father had drug [sic]him across a street for failing to clean his

      Court of Appeals of Indiana | Memorandum Decision 17A-JC-3052 | June 15, 2018   Page 3 of 10
              room, and that []he suffered injuries to his right arm, buttocks,
              leg and fingers, which the Father had stepped on. [N.M.] was
              scared during the incident and was crying, and he is afraid to be
              around the Father.

      Id. at 20.


[8]   On the same day, the court ordered N.M. to remain in Grandmother’s home

      under conditions that DCS would conduct background checks on the

      Grandmother, Father, and the paternal Uncle, and daily drop-ins would occur.

      Id. at 14. Father was ordered to vacate the home immediately. Id. at 15.

      Grandmother failed to comply with the conditions by allowing Father to return

      to her home for brief periods. Id. at 37.


[9]   On September 26, 2017, the trial court held a fact-finding hearing and found

      that:


              [Grandmother] has been the primary caretaker of [N.M.] since he
              was two (2) years old as Father was incarcerated and mother has
              not been involved with [N.M.] for years.

              In June of 2017, the child lived with [Grandmother], Father and
              [Uncle]. One day while [Grandmother] was at work, Father
              asked [N.M.] to clean his room. [N.M.] left the home and went
              across the street to his great grandmother’s home. Father
              followed [N.M.] across the street and drug [him] down two (2)
              steps and across the street by his leg. [N.M.] suffered injuries
              including bruises and scratches. This was the second incident of
              inappropriate discipline that resulted in injuries to [N.M.].

              Father admits that he will not quit using marijuana and that he
              does not want a relationship with [N.M.] unless [he] is fixed.



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               Father denies needing services but believes the child probably
               does.

               [Grandmother] admits she has been having discipline issues with
               [N.M.] and that she babies him. [Uncle] and [N.M.] got into
               escalated arguments several times and [Grandmother] had to
               intervene. She also admits that Father’s discipline has been
               inappropriate on two occasions. [Grandmother] indicated to
               DCS that she has fear [sic] of Father and that he was loud and
               aggressive in the home. DCS also observed [Uncle’s] loud and
               angry behavior in the home. [Grandmother] did not ask [Uncle]
               or Father to leave the home for the safety of the child until DCS
               involvement. Even after DCS involvement, [Grandmother]
               allowed [Uncle] to return to the home until the court ordered that
               he leave the home of the child.

               [Grandmother] admits that [N.M.] needs counseling but she has
               not obtained counselling for him on her own . . . and has not
               taken the child for the intake appointment. [Grandmother]
               blames lack of transportation for failure to obtain services but
               [Grandmother] allowed [Uncle] to take her car. Additionally,
               [Grandmother] finds transportation to Crawfordsville to see her
               sons.

                                                          ***

               [N.M.] need[s] care, treatment or rehabilitation that [he] is not
               receiving; and that it is unlikely to be provided or accepted
               without the coercive intervention of the court.

       Appellant’s App. pp. 36–37.


[10]   On October 18, 2017, the court issued an order adjudicating N.M. a CHINS.

       Id. at 36–38. The next day, DCS filed a petition for parental participation. On

       December 5, 2017, the court granted the petition for the parental participation

       and ordered Grandmother to:

       Court of Appeals of Indiana | Memorandum Decision 17A-JC-3052 | June 15, 2018   Page 5 of 10
               1. Participate in home-based care management.

               2. Comply with daily drop ins.

               3. Complete a parenting assessment and follow all
               recommendations.

               4. Maintain contact with DCS

               5. Sign all releases of information[.]

       Id. at 46. Grandmother now appeals N.M.’s adjudication as a CHINS.

                                      Discussion and Decision
[11]   Our supreme court explained in In re N.E., 919 N.E.2d 102, 105 (Ind. 2010),

       that Indiana Code sections 31-34-1-1 through 31-34-1-11 specify the elements

       that DCS must prove in order to establish that child is a CHINS: (1) the child is

       under the age of eighteen; (2) one or more particular set or sets of circumstances

       set forth in the statute exists; and (3) the care, treatment, or rehabilitation

       needed to address those circumstances is unlikely to be provided or accepted

       without the coercive intervention of the court.


[12]   In this case, the trial court found that N.M. was a child in need of services

       under Indiana Code sections 31-34-1-1 and 31-34-1-2. The first of these sections

       provides that a child is a CHINS if, before the child becomes eighteen 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,

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                        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.

       I.C. § 31-34-1-1.


[13]   The second section provides that a child is a CHINS, if before the child

       becomes eighteen (18) years of age:


               (1) the child's physical or mental health is seriously endangered
               due to injury by the act or omission of the child’s parent,
               guardian, or custodian; 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. § 31-34-1-2.


[14]   “[T]he purpose of a CHINS adjudication is to protect children, not punish

       parents.” In re L.C., 23 N.E.3d 37, 39 (Ind. Ct. App. 2015), trans. denied (citing

       N.E., 919 N.E.2d at 106). A CHINS adjudication is not a determination of

       parental fault but rather is simply a determination that a child is in need of

       services and is unlikely to receive those services without the court’s

       intervention. Id. (citing N.E., 919 N.E.2d at 105). Because CHINS proceedings


       Court of Appeals of Indiana | Memorandum Decision 17A-JC-3052 | June 15, 2018   Page 7 of 10
       are civil in nature, DCS must prove by a preponderance of the evidence that a

       child is a CHINS as defined by the relevant statutes. Id.


[15]   On appeal, we must determine whether the evidence presented supports the

       findings of the trial court, and second, whether the findings support the

       judgment. In re T.S., 906 N.E.2d 801, 804 (Ind. 2009). We do not reweigh the

       evidence nor judge the credibility of the witnesses. In re D.F., 83 N.E.3d 789,

       796 (Ind. Ct. App. 2017). Instead, we consider only the evidence that supports

       the court’s decision and reasonable inferences drawn therefrom. Id. We will

       reverse only upon a showing that the decision of the court was clearly

       erroneous. Id.


[16]   In its order, the trial court adjudicated N.M. a CHINS because “[Grandmother]

       admits that [N.M.] needs counseling but she has not obtained counselling for

       him on her own . . . and has not taken the child for the intake appointment.

       [Grandmother] blames lack of transportation for failure to obtain services but

       [Grandmother] allowed [Uncle] to take her car.” Appellant’s App. at 37.

       Further, “[he] need[s] care, treatment or rehabilitation that [he] is not receiving;

       and that it is unlikely to be provided or accepted without coercive intervention

       of the court.” Id.


[17]   Grandmother argues that “DCS did not prove that [t]herapy was necessary.”

       Appellant’s Br. at 20. But, Grandmother admitted that N.M. needs therapy. Tr.

       p. 47 (“I think he could use some counseling”). Grandmother has not attempted

       to find a counselor for N.M. Further, the DCS case manager testified that


       Court of Appeals of Indiana | Memorandum Decision 17A-JC-3052 | June 15, 2018   Page 8 of 10
       “[N.M.] needs some individual therapy to address some of the trauma within

       his relationships with his parents and his caregivers.” Id. at 58. The evidence

       supports the trial court’s finding that N.M. needs therapy, and Grandmother

       will not take him to counseling sessions without DCS involvement.

       Accordingly, N.M. was properly adjudicated a CHINS under Indiana Code

       section 31-34-1-1.


[18]   The trial court also concluded that N.M. is a CHINS under Indiana Code

       section 31-34-1-2. DCS proved that N.M.’s physical well-being has been

       endangered on multiple occasions. Grandmother attempts to argue that

       “isolated incidents of ‘excessive discipline’ do not constitute a CHINS finding.”

       Appellant’s Br. at 23. But Grandmother testified that prior to the incident where

       Father dragged N.M. across the street, Father “pulled [N.M.] off

       [Grandmother’s] bed, picked him up and took him into the living room . . . and

       pulled his ear or something and it was bruised.” Tr. pp. 39–40. According to the

       family case manager, Grandmother “stated that she knew that the way [Father]

       disciplined [N.M.] was unconventional but that she believed that he needed a

       parent . . . and [] that type of discipline specifically was concerning and harmful

       to [N.M.] and [Grandmother] stated she knew and that she had also felt fearful

       of her son for some time just because of his behavior in her home.” Tr. p. 57.

       N.M. has stated he is “afraid to be around his Father, because he is aggressive.”

       Appellant’s App. p. 15.


[19]   Moreover, Grandmother is well aware that Father poses a danger to N.M.’s well-

       being. Grandmother told DCS about “an incident between Father and [N.M.]

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       and [N.M.] and [Uncle] that [she] thought maybe had been inappropriate, but

       [she] still allowed [N.M.] to stay in the house with them.” Tr. p. 45. When asked

       why Grandmother had not asked Father or Uncle to leave the house, she

       responded, “[b]ecause they are my kids and they needed help.” Id.


[20]   Similarly, Grandmother has allowed Father back into the home after the most

       recent incident, even though the trial court ordered her to keep him away from

       the house. The record indicates that Grandmother understood Father was not

       supposed to return home but admitted that “he came back a few times[.]” Id. at

       46. The DCS case manager stated, “I have concerns about [Grandmother’s]

       ability to maintain appropriate boundaries with her adult children.” Id. at 60.

       The evidence is sufficient to prove that N.M.’s physical and mental health are

       seriously endangered, that N.M. needs care, treatment and rehabilitation,

       which he is not receiving, and is unlikely to be provided without coercive

       intervention of the court.


[21]   For all of these reasons, DCS proved by a preponderance of the evidence that

       N.M. is a CHINS under Indiana Code sections 31-34-1-1 and 31-34-1-2.


                                                 Conclusion
[22]   The trial court’s order adjudicating N.M. a CHINS is supported by sufficient

       evidence. We therefore affirm the CHINS adjudication.


[23]   Affirmed.


       Riley, J., and May, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 17A-JC-3052 | June 15, 2018   Page 10 of 10
