MEMORANDUM DECISION
                                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                                Sep 30 2019, 11:08 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                                      CLERK
                                                                                    Indiana Supreme Court
purpose of establishing the defense of res judicata,                                   Court of Appeals
collateral estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Daniel G. Foote                                        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 L.C. (Child in                            September 30, 2019
Need of Services)                                          Court of Appeals Case No.
                                                           19A-JC-839
        and
                                                           Appeal from the Marion Superior
R.C. (Father),                                             Court
Appellant-Respondent,                                      The Hon. Mark Jones, Judge
                                                           The Hon. Rosanne Ang,
        v.                                                 Magistrate
                                                           Trial Court Cause No.
Indiana Department of Child                                49D15-1811-JC-2775
Services,
Appellee-Petitioner,

        and




Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019                   Page 1 of 12
      Child Advocates, Inc.,

                 Guardian Ad Litem.




      Bradford, Judge.

                                               Case Summary
[1]   L.C. (“Child”) was born to R.C. (“Father”) and S.E. (“Mother”1; collectively,

      “Parents”) in July of 2018. In November of 2018, the Indiana Department of

      Child Services (“DCS”) petitioned to have Child adjudicated a child in need of

      services (“CHINS”) following a suicide attempt by Mother and based on

      allegations that neither Mother nor Father could ensure Child’s safety. Parents

      both have a history of mental illness, and Father unilaterally stopped taking

      medication to address his major depressive disorder and has not sought medical

      treatment since mid-2018. Following an evidentiary hearing in February of

      2019, the juvenile court adjudicated Child to be a CHINS and, inter alia,

      ordered that Child be placed with Father’s parents, with whom he and Child

      were already residing. Father contends that (1) two of the juvenile court’s

      findings are contrary to the evidence, (2) two of the juvenile court’s conclusions

      of law are clearly erroneous, and (3) the juvenile court abused its discretion in

      removing Child from Father’s care. Because we disagree, we affirm.




      1
          Mother does not participate in this appeal.




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 2 of 12
                                Facts and Procedural History
[2]   Child was born to Mother and Father on July 25, 2018. In November of 2018,

      Parents and Child were living with Mother’s other child, M.E., and Father’s

      parents (“Parental Grandparents”) in their home. On November 13, 2018,

      DCS filed a CHINS petition alleging that Child was a CHINS as to Mother

      because Mother had failed to provide Child with an appropriate living

      environment, had untreated mental-health issues, and had slit her wrist in front

      of M.E. in an attempt to kill herself. As for Father, DCS alleged that he had

      not demonstrated an ability to ensure Child’s safety and well-being while she

      was in Mother’s care.

[3]   On November 14, 2018, the juvenile court held an initial/detention hearing and

      authorized Child’s continued placement in Father’s care on a temporary in-

      home trial visit. Also that day, Father requested home-based therapy and

      informed the juvenile court “of several medical issues he is currently dealing

      with[.]” Appellant’s App. Vol. II p. 50. The juvenile court ordered Father to

      participate in home-based therapy. After DCS became involved and removed

      M.E.,2 Mother moved out of Paternal Grandparents’ home. On December 7,

      2018, Mother admitted that Child and M.E. were CHINS because Mother

      needed assistance in addressing her mental health. The juvenile court took

      Mother’s admission under advisement.




      2
          As of the disposition of this case, M.E. remains in a foster placement.




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 3 of 12
[4]   Around the same time, Jennifer Colasessano began providing home-based

      therapy to Father and determined that he suffered from major depressive

      disorder. Colasessano began working with Father to address his disorder and

      “emotion management, emotion expression, stress management,” past

      traumatic experiences, anxiety, and substance use. Tr. Vol. II p. 78. Father

      also began receiving home-based case management through Tatyana Terrell in

      December of 2018. Terrell met with Father once or twice a week initially.

      Father’s goals were to stay organized with a schedule, and to provide for

      Child’s needs.

[5]   On February 5, 2019, Parents were involved in an altercation with each other.

      Father picked Mother up from the hospital where she was seeking treatment

      after “she had taken an entire prescription pill bottle” and, on the way home,

      they began to argue. Tr. Vol. II p. 109. Father threatened Mother “three or

      more times that he would wreck the truck” and Mother either had to push the

      steering wheel or scream in order to prevent a crash. Father also threatened to

      kill Child to prevent Mother from seeing her and said that he could avoid jail if

      he killed himself as well.

[6]   On February 15, 2019, the juvenile court held an evidentiary hearing regarding

      Father. At the time of the hearing, Child was still placed with Father in

      Paternal Grandparents’ home. Mother testified that Father has threatened to

      kill himself if she left him and that she had safety concerns regarding Child

      being with Father. DCS family case manager Dominique Cox (“FCM Cox”)

      also expressed concerns, testifying that Father’s mental-health issues remained




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 4 of 12
      unresolved. (Tr. 63). FCM Cox testified that Father disclosed that he has had

      mental-health diagnoses in the past for which he used to be medicated and is

      receiving home-based therapy to address his anxiety and depression.

[7]   Colasessano testified about Father’s history of mental-health issues, noting that

      he has been diagnosed with major depressive disorder and had experienced “a

      cycle of anxiety and depression[.]” Tr. Vol. II p. 84. As for addressing his

      mental-health issues, Father admitted that he had stopped taking his medication

      and that it had “been awhile” since he had sought mental-health services,

      perhaps last in June or July of 2018. Tr. Vol. II p. 114. When asked whether

      he was currently seeing a doctor to address the issues with his medication, he

      said “no[.]” Tr. Vol. II p. 117. Terrell testified that she had not successfully

      closed out Father’s care and that he still needs work.

[8]   As it happened, neither Colasessano nor Terrell had been aware before the

      hearing that Father had tried to wreck the car with Mother in it or that Father

      had threatened to kill Child. Colasessano testified that suicidal or homicidal

      ideations could be indicative of mental-health issues, and Terrell testified that

      “[i]t would be a huge concern” if Father had done what Mother said he did.

      Tr. Vol. II p. 101.

[9]   After the evidentiary hearing, the juvenile court adjudicated Child to be a

      CHINS as to Father. The juvenile court also ordered that Child’s placement be

      changed to Paternal Grandparents, authorized Father to continue living in their

      home, and ordered that his time with Child be “strictly supervised[.]”

      Appellant’s App. Vol. II p. 109. On March 15, 2019, the juvenile court entered



      Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 5 of 12
its CHINS order, dispositional decree, and parental participation orders. The

juvenile court’s CHINS order provides, in part, as follows:

        3. The DCS became involved with [Child] after [Mother]
           attempted suicide in front of [Child]’s four-year-old sibling.
           [Mother] was taken to Community North Hospital for
           treatment. [Child] was in the home when this incident
           occurred.
        4. During the pendency of this cause of action, [Child] was
           placed in the care of [Father].
        5. [Father] has been consistently engaged in home[-]based case
           management and home[-]based therapy since the end of
           December.
        6. The Department of Child Services is concerned about
           [Father]’s mental health. On February 5, 2019, an incident
           occurred between [Father] and [Mother] while the two were
           in a vehicle. During an argument between the two, [Father]
           attempted to crash the vehicle multiple times. During this
           incident, [Father] also threatened to kill [Child, Mother] and
           himself.
        7. [Father] has a long history of mental health needs. [Father
           has] been diagnosed with Major Depressive Disorder,
           struggles with anxiety and has ceased taking his prescribed
           medication. [Father]’s last contact with his mental health
           provider was over nine months ago.
        8. [Child]’s physical or mental condition is seriously impaired or
           seriously endangered as a result of the inability, refusal, or
           neglect of [Child]’s parent, guardian, or custodian to supply
           [Child] with necessary food, clothing, shelter, medical care,
           education, or supervision. [Father] has untreated mental
           health needs which have led him to threaten to take the life of
           his child.
        9. [Child] needs care, treatment, or rehabilitation that the child
           is not receiving[] and is unlikely to be provided or accepted



Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 6 of 12
                   without the coercive intervention of the Court. [Father] has
                   ceased his mental health treatment. The coercive intervention
                   of this Court is necessary to compel [Father] to engage in this
                   needed treatment.
       Appellant’s App. Vol. II p. 138.

[10]   The juvenile court continued Child’s relative placement with Paternal

       Grandparents with the permanency plan being reunification with Parents. In

       Father’s parental-participation order, the juvenile court ordered Father to

       continue home-based therapy and home-based case management, complete a

       psychological evaluation and follow all recommendations, and complete

       community mental-health services and follow all recommendations.


                                  Discussion and Decision
[11]   Indiana Code section 31-34-1-1 provides that a child is a CHINS before the

       child becomes eighteen years of age if

               (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.
[12]   The purpose of a CHINS adjudication is to “protect children, not [to] punish

       parents.” In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 580–81 (Ind.

       2017) (citations omitted). DCS bears the burden of proving that a child is a




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 7 of 12
       CHINS by a preponderance of the evidence. Ind. Code § 31-34-12-3; see also In

       re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The Indiana Supreme Court has

       stated that

               [a] CHINS proceeding is a civil action; thus, “the State must
               prove by a preponderance of the evidence that a child is a
               CHINS as defined by the juvenile code.” In re N.E., 919 N.E.2d
               102, 105 (Ind. 2010). We neither reweigh the evidence nor judge
               the credibility of the witnesses. Egly v. Blackford County Dep’t of
               Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
               only the evidence that supports the [juvenile] court’s decision and
               reasonable inferences drawn therefrom. Id. We reverse only
               upon a showing that the decision of the [juvenile] court was
               clearly erroneous. Id.
       In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (footnote omitted). Father

       contends that (1) two of the juvenile court’s findings are contrary to the

       evidence, (2) the juvenile court’s conclusions that Child’s physical or mental

       condition is seriously impaired or endangered and that Child needs care or

       treatment that Father is unable or unwilling to provide without coercive

       intervention are clearly erroneous, and (3) the juvenile court abused its

       discretion in removing Child from Father’s care.

                                      I. Challenged Findings
[13]   Father contends that the juvenile court’s finding regarding the February 5,

       2018, incident is unsupported by the record. Mother, however, testified that

       during the incident, Father threatened Child’s life and tried to wreck the car

       several times on the way home. Regarding the threat, Mother testified that

               [a]t one point he had stated that he was not going to allow me to
               see [Child]. When I told them that by law—when I told him that


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 8 of 12
               by law he cannot do that. He said, “I can if I kill her.” I said,
               “You will go to jail.” He said, “Not if I kill us both.”
       Tr. Vol. II p. 76. While Father testified that the altercation occurred differently,

       the juvenile court was under no obligation to credit his version of events and

       did not. See, e.g., Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)

       (“[F]actfinders are not required to believe a witness’s testimony even when it is

       uncontradicted.”). Father is requesting that we reweigh the evidence, which we

       will not do.

[14]   Moreover, the record contains ample evidence to support a finding that Father

       had a history of mental-health issues that has yet to be adequately addressed.

       FCM Cox testified that Father disclosed that he has received diagnoses of

       anxiety and depression, for which Father was prescribed medication that he

       unilaterally stopped taking. Colasessano testified about Father’s history of

       mental-health issues, noting that he has been diagnosed with major depressive

       disorder and anxiety. Father admitted that he had unilaterally stopped taking

       his medication and that he had not sought mental-health services since mid-

       2018. Father also admitted that he was not currently under the care of a doctor.

       Father is again asking us to reweigh the evidence, which we will not do. See In

       re K.D., 962 N.E.2d at 1253.

                                  II. Challenged Conclusions
                      A. Child’s Physical or Mental Condition Is
                          Seriously Impaired or Endangered
[15]   Father challenges the juvenile’s conclusion that Child’s physical or mental

       condition is seriously impaired or endangered. As mentioned, the juvenile



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 9 of 12
       court found that Father threatened to kill Child ten days before the evidentiary

       hearing to prevent Mother from seeing her, which certainly supports a

       conclusion that her physical condition is endangered. A juvenile court need not

       wait until a tragedy occurs before adjudicating a Child a CHINS. In re R.S., 987

       N.E.2d 155, 158 (Ind. Ct. App. 2013). Father has not established that the

       juvenile court’s decision to treat this threat seriously was clearly erroneous.

[16]   Moreover, as mentioned, the record contains ample evidence that Father suffers

       from unresolved mental-health issues. Father’s home-based therapist diagnosed

       him with major depressive disorder, and, although he had been taking medicine

       to help him cope with his mental-health issues, he had stopped by the time DCS

       became involved. Father’s unresolved mental-health issues also support a

       conclusion that Child’s condition is endangered.

                              B. Care is Unlikely to Be Provided
                                 Without Court Intervention
[17]   Father challenges the juvenile court’s conclusion that he is unlikely to address

       his mental-health issues without court intervention. “[T]he government is

       permitted to forcibly intervene in a family’s life only if the family cannot meet a

       child’s needs without coercion[.]” Matter of E.K., 83 N.E.3d 1256, 1261 (Ind.

       Ct. App. 2017), trans. denied. Generally, while “the question is whether the

       parent[] must be coerced into providing or accepting necessary treatment for

       their child[,]” id. at 1262, the question here is whether Father must be coerced

       into getting the care that he needs in order to be a good parent to Child.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 10 of 12
[18]   While it is true that Father is participating in home-based counseling, he is

       under court order to do so, and there is no indication that he would seek such

       counseling on his own. We find it of little help to Father that he requested the

       counseling from the juvenile court, because the request was made only after

       DCS became involved. Moreover, Father admitted that he had unilaterally

       stopped taking medication to treat his mental-health issues, was not currently

       under a physician’s care, and had not seen a doctor since June or July of 2018.

       Simply put, there is no compelling evidence that Father would be doing

       anything at all to address his mental-health issues without court intervention,

       and the record indicates that he is not currently doing enough, even with court

       intervention. The juvenile court’s conclusion in this regard is not clearly

       erroneous.

                             III. Removal from Father’s Care
[19]   Finally, Father contends that the juvenile court abused its discretion in ordering

       the removal of Child from his care. Indiana Code section 31-34-20-1(a)

       provides, in part, that

               if a child is a child in need of services, the juvenile court may
               enter one (1) or more of the following dispositional decrees:
                   (1) Order supervision of the child by the department.
               [….]
                   (3) Remove the child from the child’s home and authorize the
                   department to place the child in another home, shelter care
                   facility, child caring institution, group home, or secure private
                   facility. Placement under this subdivision includes
                   authorization to control and discipline the child.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 11 of 12
[20]   The juvenile court ordered that Child be placed with Father’s parents and that

       Father could continue to reside with his parents but could only have supervised

       visitation with Child. Father contends that this disposition seems to be based

       exclusively on the fact that Father and Father’s mother had arranged a

       babysitter for Child during the evidentiary hearing. Suffice it to say that we see

       nothing in the record to support this contention. The juvenile court’s concerns

       about Child remaining in Father’s care are clear from the record and have

       nothing to do with a babysitter: Father’s threat to kill Child and his

       unaddressed mental-health issues. Given these concerns, we cannot say that

       the juvenile court abused its discretion in crafting a dispositional order that

       limits Father’s contact with Child to supervised visitation, at least for the time

       being.

[21]   We affirm the judgment of the juvenile court.

       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-839 | September 30, 2019   Page 12 of 12
