MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                          Jun 19 2017, 5:51 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
Jeffery A. Earl                                           Curtis T. Hill, Jr.
Danville, Indiana                                         Attorney General of Indiana

                                                          Marjorie Newell
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of O.S. (Child),                            June 19, 2017
                                                          Court of Appeals Case No.
A Child in Need of Services                               32A05-1701-JC-50
                                                          Appeal from the Hendricks
        and,                                              Superior Court
                                                          The Honorable Karen M. Love,
R.S. (Mother),                                            Judge
                                                          Trial Court Cause No.
Appellant-Respondent,                                     32D03-1606-JC-63

        v.

The Indiana Department of
Child Services,




Court of Appeals of Indiana | Memorandum Decision 32A05-1701-JC-50 | June 19, 2017          Page 1 of 9
      Appellee-Petitioner.




      Barnes, Judge.


                                             Case Summary
[1]   R.S. (“Mother”) appeals the trial court’s order finding her daughter, O.S., to be

      a child in need of services (“CHINS”). We affirm.


                                                      Issue
[2]   Mother raises one issue, which we restate as whether the evidence is sufficient

      to prove O.S. is a CHINS.


                                                      Facts
[3]   O.S. was born in June 2012 to Mother and D.S. (“Father”). Although Mother

      and Father were married, they separated, and O.S. lived with Mother and had

      parenting time with Father. At some point, Father told Mother that he had

      touched O.S. inappropriately, that he had sexual fantasies involving children,

      and that he wanted to have a threesome with O.S. and Mother; Mother did not

      inform the authorities. Mother claimed that she took O.S. to a doctor when she

      was three years old to see if O.S. had been molested, that she questioned O.S.,
      Court of Appeals of Indiana | Memorandum Decision 32A05-1701-JC-50 | June 19, 2017   Page 2 of 9
      and that she called a sex abuse hotline but did not receive a return phone call.

      Mother and O.S. were living with Mother’s boyfriend, who was abusive to

      Mother, and in approximately May 2016, Mother and O.S. moved in with

      Father and his roommate. At that time, four-year-old O.S. had a severe speech

      delay and was able to say only twenty to thirty words. However, Mother had

      not sought any speech therapy for O.S.


[4]   In June 2016, the Department of Child Services (“DCS”) received a report that

      Father told a friend that he could not wait for O.S. to start her period so that he

      could have sex with her. Police officers interviewed Father, and he admitted to

      molesting O.S. He also admitted that he had sexual fantasies about children

      and that he told Mother about his fantasies. Mother admitted that she was

      aware Father had touched O.S. inappropriately but that she still allowed Father

      to have unsupervised contact with O.S. O.S. was removed from Mother’s care

      and placed with paternal grandmother. Father was convicted of Level 4 child

      molesting, and he is serving a sentence in the Department of Correction.


[5]   DCS filed a petition alleging that O.S. was a CHINS based on Indiana Code

      Section 31-34-1-1 (inability, refusal, or neglect of a parent to supply the child

      with necessary food, clothing, shelter, medical care, education, or supervision),

      Indiana Code Section 31-34-1-2 (an act or omission of a parent seriously

      endangering the child’s physical or mental health), and Indiana Code Section

      31-34-1-3 (child is the victim of a sex offense). Father admitted that O.S. was a

      CHINS, but Mother contested the allegations and a date for a fact-finding

      hearing was set.

      Court of Appeals of Indiana | Memorandum Decision 32A05-1701-JC-50 | June 19, 2017   Page 3 of 9
[6]   Mother struggled to understand why O.S. was removed from her care. Shortly

      after O.S. was removed from Mother’s care, the guardian ad litem (“GAL”)

      attended a visitation between Mother and O.S. that paternal grandmother was

      supervising. At the visit, Mother twice told O.S. that she needed to “tell the

      truth so [she] could come home. . . .” Tr. p. 117. When the GAL told Mother

      not to talk about those things, Mother became angry. At the end of the visit,

      Mother said, “I’m so messed up I don’t even know why I’m here.” Id. at 118.

      DCS referred Mother for supervised visitations and voluntary home-based care

      to assist her with stable housing and employment. When Mother indicated that

      she was depressed and anxious, DCS made a referral for a home-based therapist

      and a neuropsychological evaluation. Mother did not participate in a

      neuropsychological evaluation, but she did participate in therapy. The therapist

      testified that Mother was making progress and recommended that she continue

      therapy.


[7]   Between June 2016 and October 2016, Mother worked at a traveling carnival

      and at a fast food restaurant. She moved five times in five weeks, and it was

      difficult to maintain contact with her. At one point, Mother moved in with a

      new boyfriend a week after meeting him, and he did not pass the DCS

      background check. DCS informed Mother that “it would be incredibly difficult

      to reunify [O.S.] with her while she was living with [the boyfriend].” Id. at 105.


[8]   At a fact-finding hearing in October 2016, Mother had divorced Father. O.S.

      was still placed with paternal grandmother, who had started O.S. in speech

      therapy. O.S. was also participating in individual counseling. The DCS case

      Court of Appeals of Indiana | Memorandum Decision 32A05-1701-JC-50 | June 19, 2017   Page 4 of 9
       manager testified that coercive intervention of the court was necessary to help

       Mother with stability, parenting skills, and learning to protect O.S.


[9]    In November 2016, Mother requested unsupervised parenting time. At an

       evidentiary hearing on the motion, Mother’s therapist testified that Mother

       continued to blame Father for O.S.’s removal, that Mother struggled to take

       responsibility for O.S.’s removal, and that she was not sure Mother “cognitively

       grasps all of the needs that the child has to keep her safe.” Id. at 154. The

       home-based case management worker testified that they had closed the referral

       due to Mother’s noncompliance. He continued, however, supervising

       Mother’s visitations with O.S. Mother sometimes came to the visits very angry

       at the visitation supervisor and DCS. Sometimes she could calm down, but

       other times, they had to end the visit due to Mother’s inappropriate behavior.

       Mother also got angry with the DCS case manager and cursed at him. DCS

       objected to Mother having unsupervised visitations and recommended

       therapeutic visitations.


[10]   The trial court found that O.S. was a CHINS. At the dispositional hearing, the

       trial court ordered Mother to participate in a parenting assessment, therapeutic

       visitations, home-based case management services, individual counseling, and a

       neuropsychological evaluation. Mother now appeals.


                                                    Analysis
[11]   Mother challenges the trial court’s finding that O.S. is a CHINS. “A CHINS

       proceeding is a civil action; thus, ‘the State must prove by a preponderance of

       Court of Appeals of Indiana | Memorandum Decision 32A05-1701-JC-50 | June 19, 2017   Page 5 of 9
       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)). We neither reweigh the evidence nor judge the credibility of

       the witnesses. Id. We consider only the evidence that supports the trial court’s

       decision and reasonable inferences drawn therefrom. Id. We reverse only upon

       a showing that the decision of the trial court was clearly erroneous. Id.


[12]   “There are three elements DCS must prove for a juvenile court to adjudicate a

       child a CHINS.” Id. DCS must first prove the child is under the age of

       eighteen. Id. DCS must then prove that at least one of eleven different

       statutory circumstances exists that would make the child a CHINS. Id. Finally,

       “in all cases, DCS must prove the child needs care, treatment, or rehabilitation

       that he or she is not receiving and that he or she is unlikely to be provided or

       accepted without the coercive intervention of the court.” Id.


[13]   Here, the trial court found O.S. to be a CHINS based on Indiana Code Section

       31-34-1-1 (inability, refusal, or neglect of a parent to supply the child with

       necessary food, clothing, shelter, medical care, education, or supervision),

       Indiana Code Section 31-34-1-2 (an act or omission of a parent seriously

       endangering the child’s physical or mental health), and Indiana Code Section

       31-34-1-3 (child is the victim of a sex offense). Each basis also required DCS to

       prove that O.S. needed care, treatment, or rehabilitation that she was not

       receiving and that she was unlikely to be provided or accepted without the

       coercive intervention of the court. The trial court found that coercive

       intervention of the court was necessary and made the following findings:

       Court of Appeals of Indiana | Memorandum Decision 32A05-1701-JC-50 | June 19, 2017   Page 6 of 9
            17.      Mother did not protect [O.S.] from Father. Mother
                     does not see red flags in others that place [O.S.] at risk
                     for sexual abuse.


            18.      The coercive intervention of the Court is necessary so
                     Mother can receive the counseling and parent skills
                     training so she can recognize risks to [O.S.’s] physical
                     and emotional safety that others present and so Mother
                     can learn how to actually protect [O.S.] in the future.


                                                    *****


            20.      Mother needs counseling, sex abuse education and
                     training to recognize risks to [O.S.] and ways to
                     mitigate those risks. Mother will not receive the
                     education and skills training she needs without the
                     coercive intervention of the Court. The Court does not
                     believe Mother will engage in services without Court
                     intervention.


                                              *****


            28.      Mother does not have stable housing. While the case
                     was pending, Mother continued to live with her
                     boyfriend even though she knew the man would not
                     pass the DCS background check. This is the second
                     example of Mother putting her need for housing with a
                     man ahead of [O.S.’s] need for safety. If DCS and the
                     Court were not involved [O.S.] would be tagging along
                     with Mother as Mother moves in and out of various
                     houses. Currently Mother does not have the ability [to]
                     recognize warning signs that a person Mother is
                     attracted to may be a safety threat to [O.S.]. Mother
                     needs help to recognize warning signs and how to
                     protect [O.S.]. Mother needs help to achieve some

Court of Appeals of Indiana | Memorandum Decision 32A05-1701-JC-50 | June 19, 2017   Page 7 of 9
                            financial stability so Mother is not desperate to move in
                            with anyone who will let her and [O.S.] live with them.


                                                     *****


                   32.      The coercive intervention of the Court is necessary to
                            assure that Mother receives the services she needs so
                            she can protect [O.S.] when she and [O.S.] are
                            reunited.


                                                     *****


                   35.      Without the coercive intervention of the Court Mother
                            will not receive the services she needs to learn how to
                            protect [O.S.] in the future.


       Appellant’s App. Vol. II pp. 16-19.


[14]   On appeal, Mother argues that, prior to O.S.’s removal, she took steps to

       “verify whether a molestation had occurred” and to protect O.S from Father.

       Appellant’s Br. p. 10. According to Mother, she questioned O.S., took O.S. to

       a doctor, and contacted a sex abuse hotline. She also argues that she attempted

       to ensure that Father’s roommate monitored interactions between Father and

       O.S. and that she fully cooperated with authorities. She divorced Father and

       participated in home-based case work and therapy. Mother also argues that the

       counseling and speech therapy were provided by paternal grandmother, not

       DCS referrals, and that she would continue with the therapy.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1701-JC-50 | June 19, 2017   Page 8 of 9
[15]   DCS presented evidence that Mother was aware that Father had molested O.S.;

       in fact, Father admitted it to Mother. Despite his admission, Mother continued

       to allow O.S. to visit with Father and did not report the molestation to the

       authorities. Although she claims that Father’s roommate was monitoring them,

       O.S.’s bed was in Father’s bedroom, and his roommate had a separate

       bedroom. Shortly before O.S. was removed from Mother’s care, Mother and

       O.S. moved in with Father because they did not have housing, which allowed

       Father even greater access to O.S. At the time of the fact-finding hearing,

       Mother did not have stable employment or housing. She repeatedly moved in

       with men that she had recently met. Although she was participating in services

       offered by DCS, she still struggled to understand why O.S. was removed from

       her care. As for O.S.’s therapies, Mother was aware that four-year-old O.S. had

       a significant speech delay but had not arranged for her to receive any treatment

       for the delay. Regardless of whether paternal grandmother or DCS arranged

       for the treatment, the point is that Mother did not do so and did not protect

       O.S. from Father. The trial court’s findings that coercive intervention of the

       court was necessary are not clearly erroneous.


                                                 Conclusion
[16]   The trial court properly found that O.S. was a CHINS. We affirm.


[17]   Affirmed.


       Baker, J., and Crone, J., concur.



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