MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Oct 31 2016, 9:26 am

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


ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                       Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of P.G. (Minor                              October 31, 2016
Child), Child in Need of Services                         Court of Appeals Case No.
                                                          49A04-1604-JC-722
J.G. (Father), P.G. (Guardian),                           Appeal from the Marion Superior
and M.G. (Guardian),                                      Court
Appellants-Respondents,                                   The Honorable Marilyn A.
                                                          Moores, Judge
        v.
                                                          The Honorable Rosanne Ang,
The Indiana Department of                                 Magistrate
Child Services,                                           Trial Court Cause No.
                                                          49D09-1509-JC-2867
Appellee-Petitioner



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016     Page 1 of 10
                                                 Case Summary
[1]   P.G. (“Grandmother”) and M.G. (“Grandfather”) (collectively

      “Grandparents”) are the paternal grandparents and guardians of their teenage

      granddaughter, P.G. Grandparents and P.G.’s father, J.G. (collectively

      “Appellants”), appeal the trial court’s determination that P.G. is a child in need

      of services (“CHINS”). Appellants argue that the trial court erred in finding

      P.G. to be a CHINS, detaining P.G., and refusing the predispositional

      placement recommendations of the Indiana Department of Child Services

      (“DCS”). Finding no error, we affirm.


                                   Facts and Procedural History 1
[2]   P.G. was born in October 1999 and lived in Grandparents’ home with

      Appellants. Grandfather has diabetes, and Grandmother is “confined to her

      bed[.]” Tr. at 68. Both require supplemental oxygen. P.G. repeatedly ran

      away from home, stayed with her adult boyfriend, did not attend school, and

      became pregnant. On September 24, 2015, DCS filed a petition alleging that

      P.G. is a CHINS. On that date, the trial court held a detention hearing at

      which Appellants did not appear; the record indicates that Appellants did not

      receive notice of the hearing until October 6. The trial court found that P.G.’s




      1
        We remind Appellants’ counsel that an appellant’s statement of facts “shall be in narrative form and shall
      not be a witness by witness summary of the testimony.” Ind. Appellate Rule 46(A)(6)(c). We also remind
      counsel that the table of contents in an appellant’s brief “shall list each section of the brief, including the
      headings and subheadings of each section and the page on which they begin.” Ind. Appellate Rule 46(A)(1)
      (emphasis added).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016               Page 2 of 10
      removal from Grandparents’ home was necessary for her protection and placed

      her at Valle Vista, a residential treatment facility. The trial court held a

      factfinding hearing in January 2016. 2 P.G. was scheduled to have labor

      induced the next day. In February 2016, the trial court issued an order finding

      P.G. to be a CHINS. In March 2016, the trial court held a dispositional

      hearing and issued an order continuing P.G.’s placement at Valle Vista. This

      appeal followed. Additional facts will be provided below.


                                      Discussion and Decision

          Section 1 – The trial court did not clearly err in finding P.G.
                                 to be a CHINS.
[3]   Appellants contend that the trial court erred in finding P.G. to be a CHINS.

      This Court has “recognized that parents have a fundamental right to raise their

      children without undue influence from the State, but that right is limited by the

      State’s compelling interest in protecting the welfare of children.” In re R.P., 949

      N.E.2d 395, 401 (Ind. Ct. App. 2011). “The CHINS statutes do not require

      that a trial court wait until a tragedy occurs to intervene. Instead, a child is a

      CHINS when he or she is endangered by parental action or inaction.” Id.

      (citation omitted). “[T]he purpose of a CHINS adjudication is to protect

      children, not punish parents.” In re N.E., 919 N.E.2d 102, 106 (Ind. 2010).




      2
       P.G.’s mother was named in the CHINS petition but did not attend the hearing. The trial court later
      entered an order of default against her, and she does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016         Page 3 of 10
[4]   DCS has the burden of proving that a child is a CHINS by a preponderance of

      the evidence. Ind. Code § 31-34-12-3. In reviewing a trial court’s CHINS

      determination, we neither reweigh evidence nor judge witness credibility. In re

      S.K., 57 N.E.3d 878, 881 (Ind. Ct. App. 2016). Where, as here, the trial court

      has entered findings of fact and conclusions thereon sua sponte, our standard of

      review is governed by Indiana Trial Rule 52(A). In re S.A., 15 N.E.3d 602, 607

      (Ind. Ct. App. 2014), aff’d on reh’g, 27 N.E.3d 287 (2015), trans. denied. For the

      issues covered by the court’s findings, we first consider whether the evidence

      supports the findings and then whether the findings support the judgment. Id.


              We will not set aside the findings or judgment unless they are
              clearly erroneous. Factual findings are clearly erroneous where
              there are no facts in the record to support them either directly or
              by inference. A judgment is clearly erroneous if it relies on an
              incorrect legal standard. We accord substantial deference to the
              trial court’s findings of fact but not to its conclusions of law. Any
              issues not covered by the trial court’s findings are reviewed 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. (citations and quotation marks omitted).


[5]   DCS alleged that P.G. is a CHINS pursuant to Indiana Code Section 31-34-1-1,

      which 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

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016   Page 4 of 10
               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.


      In its petition, DCS alleged that Appellants were unable to provide P.G. “with

      a safe, stable, and appropriate living environment with a necessary education”;

      that P.G. was “currently pregnant and believed to be residing with the father of

      her child, who is approximately twenty-six years old”; that P.G. had

      “behavioral issues” that Appellants “have been unable to adequately address,

      and [P.G.] continues to run away from home”; that P.G. was “not attending

      school regularly”; and that P.G. was in need of services that she was not

      receiving and was unlikely to receive without the court’s involvement.

      Appellants’ App. at 29. 3


[6]   In its order, the trial court made the following findings: 4

               4. At the time of the filing of the petition, Appellants resided [at
               Grandparents’ home] in Indianapolis, Indiana. P.G. was living




      3
       DCS incorporated its preliminary inquiry report into the petition by reference. Appellants’ App. at 29.
      DCS mentions some of the report’s findings in its appellate brief, see, e.g., Appellee’s Br. at 10 n.10, but DCS
      did not elicit any evidence regarding them at the factfinding hearing.
      4
       The order refers to the parties and others by name. We use the foregoing designations or initials where
      appropriate.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016              Page 5 of 10
        with S.R., her boyfriend who was known by Appellants to be 26
        years old.
        5. At the time of the filing of the petition, P.G. was enrolled in
        school, but not attending.
        6. Prior to the filing of the [CHINS petition], P.G. had run away
        from Grandparents’ home “well over 15 times”. Appellants
        stopped contacting law enforcement about the child’s running
        away after they were required to go to the police station to make
        a formal report.
        7. As of the date of the fact-finding, Appellants’ only stated
        attempt to prevent future incidents of P.G. running from the
        home was to place a screw on the outside of her bedroom
        window so that it cannot be opened. Appellants have also
        installed a monitor in front of P.G.’s bedroom, but this monitor is
        not activated.
        8. At the time of the fact-finding hearing, P.G. had been placed
        in a residential treatment facility for approximately three months
        and Appellants were engaged in family therapy. P.G. has not
        reached a point in her treatment where she could be safely
        returned to Grandparents’ care.
        9. P.G.’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. Appellants have been unable to
        address P.G.’s repeated behavior of running from their home and
        allowed her to reside with a boyfriend who[m] they believed to
        be twenty-six years old. While Appellants place a strong
        emphasis on the slight physical adjustment made to the home
        since the filing of the petition, the issue at hand goes well beyond
        whether the child is physically able to open her bedroom window
        in the evenings. P.G. was allowed to live outside the care of her
        family for an extended period of time, was not attending school
        regularly and is now a mother herself. Appellants have not been
        able to provide her with the level of supervision required to meet
        her needs.
        10. P.G. needs care, treatment, or rehabilitation that she is not

Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016   Page 6 of 10
               receiving and is unlikely to be provided or accepted without the
               coercive intervention of the court. P.G. is currently in a
               residential treatment facility and is receiving therapy with her
               family. P.G. has not received this type of treatment in the past
               and has exhibited behaviors that clearly warrant this level of
               extensive treatment. This Court’s intervention is required to
               ensure that she receives the needed treatment and supervision as
               it has not been provided for her by her legal guardians or father.


      Id. at 103-04.


[7]   Appellants claim that the trial court erred in finding that they were unable or

      unwilling to provide appropriate supervision or education for P.G. This claim

      is contradicted by the evidence regarding P.G.’s numerous runaways and

      failure to attend school as required by state law. See Ind. Code § 20-33-2-6

      (requiring students to attend school until they either graduate or turn eighteen

      unless allowed to withdraw under certain circumstances). 5 Appellants also

      claim that the trial court erred in finding that P.G.’s physical or mental

      condition was seriously endangered. We disagree. Although DCS presented

      little specific evidence regarding P.G.’s physical or mental condition at the

      factfinding hearing, it was reasonable for the trial court to infer that a pregnant

      fifteen-year-old who repeatedly runs away from her ailing grandparents’ home




      5
       Because the record supports the trial court’s finding that Appellants were unable or unwilling to supply P.G.
      with necessary supervision or education, we need not address Appellants’ assertion that they supplied her
      with appropriate food, clothing, shelter, and medical care.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016           Page 7 of 10
      to live with her twenty-six-year-old boyfriend is in serious physical and/or

      mental jeopardy. 6


[8]   Finally, Appellants claim that the trial court erred in finding that P.G. needs

      “care, treatment, or rehabilitation that she is not receiving and is unlikely to be

      provided or accepted without the coercive intervention of the court.”

      Appellants’ App. at 104. Appellants note that P.G. had participated in therapy

      prior to DCS’s involvement. Obviously, that therapy did not resolve the

      underlying issues that led to P.G.’s numerous runaways and truancy.

      Grandmother testified that P.G. would be able to continue that therapy if she

      were released from Valle Vista, but given P.G.’s persistent refusal to stay in

      Grandparents’ home, it was reasonable for the trial court to conclude that P.G.

      needed treatment that she was not receiving and was unlikely to be provided or

      accepted without coercive court intervention. 7 Appellants also point to

      evidence that P.G.’s behavior had improved while she was at Valle Vista, and

      they suggest that she no longer needed treatment as of the factfinding hearing.

      But P.G. was in only the second of five treatment phases, and it was reasonable




      6
        The reasonableness of this inference was borne out by later events. At the dispositional hearing, a DCS
      supervisor stated that P.G. was “doing as well as to be expected” at Valle Vista but had “a setback last week
      regarding self-harming.” Tr. at 131, 132. It also bears mentioning that if P.G. had sexual intercourse with
      someone at least eighteen years old before she turned sixteen, she was the victim of the felony offense of
      sexual misconduct with a minor. Ind. Code § 35-42-4-9.
      7
        Appellants’ argument that they have rendered their home more secure is an invitation to reweigh evidence
      in their favor, which we will not do.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016            Page 8 of 10
      for the trial court to infer that she remained in need of treatment. In sum, the

      trial court did not clearly err in finding P.G. to be a CHINS.


             Section 2 – Appellants have waived any claim of error
                          regarding P.G.’s detention.
[9]   Next, Appellants contend that the trial court inappropriately detained P.G. after

      the detention hearing, for which they did not receive notice until days

      afterward. 8 DCS observes that Appellants never raised this issue before the trial

      court. “[A]n argument or issue not presented to the trial court is generally

      waived for appellate review.” Commitment of T.S. v. Logansport State Hosp., 959

      N.E.2d 855, 857 (Ind. Ct. App. 2011), trans. denied (2012). “The rule of waiver

      in part protects the integrity of the trial court in that the trial court cannot be

      found to have erred as to an issue or argument that it never had an opportunity

      to consider.” Id. To the extent Appellants challenge the trial court’s decision

      on the merits and/or on due process grounds, those arguments are waived. See

      id.; see also McBride v. Monroe Cnty. Office of Family & Children, 194-95 (Ind. Ct.

      App. 2003) (finding that appellant waived due process argument raised for first

      time on appeal). Nevertheless, we emphasize the importance of ensuring that

      parties in CHINS proceedings are given proper notice and a meaningful

      opportunity to be heard.




      8
        Indiana Code Section 31-34-5-3 provides in pertinent part that after holding a detention hearing, the court
      “shall release the child to the child’s parent, guardian, or custodian. However, the court may order the child
      detained if the court makes written findings of fact upon the record of probable cause to believe that the child
      is a child in need of services and that … detention is necessary to protect the child[.]”

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016              Page 9 of 10
             Section 3 – Appellants have waived any claim of error
           regarding the trial court’s refusal of DCS’s predisposition
                         placement recommendations.
[10]   Finally, Appellants contend that the trial court erred in refusing DCS’s

       predisposition placement recommendations. Again, because they did not raise

       this issue before the trial court, it is waived. Id. 9 We affirm the trial court in all

       respects.


[11]   Affirmed.


       Kirsch, J., and May, J., concur.




       9
        DCS notes that Indiana Code Section 31-34-4-7(f) specifically authorizes DCS, but not a child’s parent or
       guardian, to appeal a trial court’s refusal of DCS’s predisposition placement recommendations.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-JC-722 | October 31, 2016         Page 10 of 10
