MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                May 31 2019, 9:00 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kyle D. Gobel                                            Curtis T. Hill, Jr.
Collier Gobel Homann LLC                                 Attorney General of Indiana
Crawfordsville, Indiana                                  Erik J. Bryant
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: A.M. and J.M.,                         May 31, 2019
Minor Children,                                          Court of Appeals Case No.
                                                         18A-JC-3015
D.M., Father,
                                                         Appeal from the Montgomery
Appellant,                                               Circuit Court
        v.                                               The Honorable Harry Siamas,
                                                         Judge
The Indiana Department of                                Trial Court Cause Nos.
Child Services,                                          54C01-1808-JC-223
Appellee.                                                54C01-1808-JC-224




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019                      Page 1 of 10
[1]   D.M. (“Father”) appeals the trial court’s order determining that A.M. and J.M.

      are children in need of services (“CHINS”). Father raises one issue which we

      revise and restate as whether the evidence is sufficient to support the court’s

      determination. We affirm.


                                      Facts and Procedural History

[2]   A.M. who was born in May 2008 and J.M. who was born in March 2012 are

      the children of Father and S.M. (“Mother”). The court entered a decree of

      dissolution in April 2014 which dissolved the marriage of Father and Mother

      and ordered that Father have sole custody of the children and Mother have

      supervised visitation.


[3]   On August 6, 2018, the Department of Child Services (“DCS”) filed petitions

      alleging the children were CHINS. The petitions alleged in part that DCS

      received a report on August 3, 2018, the children were homeless and Father

      was using methamphetamine, the family had been the subject of two prior

      reports in 2018 and nineteen reports since 2010, and the children were found

      living in a tent in the backyard of a family friend, R.J., who said she was the

      only person feeding the children. They further alleged Father’s whereabouts on

      August 3, 2018, were unknown, DCS made several attempts to contact him,

      Mother stated that Father physically assaulted her on August 2, 2018, and a

      family case manager observed bruises on Mother. According to the petitions,

      A.M. said Mother and Father were in a fight and Father accidentally hit him,

      J.M. said that Father punched him on the leg, while staying in a tent at their


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019   Page 2 of 10
      grandmother’s yard the children were not allowed to go into the home to

      shower, Father stated Mother abuses prescription pills or is using

      methamphetamine and should not be around the children but that he had been

      allowing her around them anyway, and Mother failed a drug screen for

      methamphetamine. The children were removed with the assistance of law

      enforcement.


[4]   In September 2018, DCS filed a petition to introduce statements made by the

      children. On October 3, 2018, the court entered an order that the children’s

      statements may be introduced and admitted into evidence at the factfinding

      hearing. On October 4, 2018, the court held the CHINS factfinding hearing at

      which DCS presented the testimony of R.J., DCS assessor Zoey Rowe, and

      family case managers Melinda Tyler (“FCM Tyler”) and Charlene Colley

      (“FCM Colley”). Father testified that he had not used drugs in the past two

      years and had never used methamphetamine. He indicated that he moved to

      R.J.’s sometime in mid-July, and when asked how long he had been living there

      before DCS came and removed the children, he answered “[p]robably for about

      two weeks.” Id. at 76. He testified that he stayed in the tent and that they all

      had access to the shower, bathrooms, and food. When asked where he had

      been living previously, Father indicated his mother’s house and testified that he

      had a tent in her yard, that he slept in it a lot of times but not all of the time,

      and that the children slept inside and had everything they needed at the house

      including a shower and food. Father also indicated that he had a pending

      charge for theft as a level 6 felony.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019   Page 3 of 10
[5]   On October 19, 2018, the court entered an Order on Fact Finding Hearing

      which found the children were CHINS and made the following findings of fact:

              1. Father took the children to [R.J.’s] home to live in a tent for 2
              weeks; [R.J.] was a complete stranger to the children.

              2. Both children witnessed domestic violence between [Mother]
              and [Father].

              3. Mother stated [Father] beat her.

              4. Mother used drugs and was under the influence.

              5. Mother is the non-custodial parent; and [Father] allowed her
              around the children knowing she was using drugs and under the
              influence of drugs.

              6. [A.M.] was accidently struck in the nose by [Father] during a
              domestic violence incident between [Mother] and [Father].

              7. Father has hit [J.M.] on the leg.

              8. The children witnessing domestic violence is traumatic to them
              and causes them harm.

              9. When DCS interviewed [A.M.], he was not appropriately
              dressed.

              10. Due to [Father’s] mistrust of the DCS, he has refused to
              cooperate with the DCS.


      Appellant’s Appendix Volume 2 at 42-43. The court subsequently issued a

      dispositional order.


                                                  Discussion

[6]   The issue is whether sufficient evidence supports the trial court’s determination

      that the children are CHINS. Father argues that the court’s findings that the

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019   Page 4 of 10
      children were living in a tent, that Mother stated that he beat her, and that he

      allowed her to be around the children when she was under the influence were

      clearly erroneous. He argues that Mother was incarcerated at the time of the

      factfinding hearing, Mother’s addiction issues did not endanger the children,

      and the findings regarding the domestic incidents, A.M.’s attire, and his

      decision to decline services do not rise to the level necessary to support a

      CHINS adjudication. The State responds that the record supports the

      challenged findings and the court’s adjudication is not clearly erroneous.


[7]   In reviewing a trial court’s determination that a child is in need of services, we

      neither reweigh the evidence nor judge the credibility of witnesses. In re S.D., 2

      N.E.3d 1283, 1286-1287 (Ind. 2014), reh’g denied. Instead, we consider only the

      evidence that supports the trial court’s decision and reasonable inferences

      drawn therefrom. Id. at 1287. As to issues covered by findings, we apply the

      two-tiered standard of whether the evidence supports the findings and whether

      the findings support the judgment. Id. We review remaining issues 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.


[8]   Ind. Code § 31-34-1-1 provides:

              A child is a child in need of services if before the child becomes
              eighteen (18) 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


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019      Page 5 of 10
                       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.


      The CHINS statute does not require that a court wait until a tragedy occurs to

      intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Rather, a

      child is a CHINS when he or she is endangered by parental action or inaction.

      Id. A CHINS determination establishes the status of a child alone. In re N.E.,

      919 N.E.2d 102, 106 (Ind. 2010). Because a CHINS determination regards the

      status of the child, a separate analysis as to each parent is not required in the

      CHINS determination stage. Id. The conduct of one parent can be enough for

      a child to be adjudicated a CHINS. Id. The purpose of a CHINS adjudication

      is to protect children, not punish parents. Id. The resolution of a juvenile

      proceeding focuses on the best interests of the child, rather than guilt or

      innocence as in a criminal proceeding. Id.


[9]   The record reveals that R.J. testified that, in July 2018, Mother asked her if

      Father and the children could camp in her backyard for a few days and that she

      met the children when they came to stay with her. She indicated that she had

      met Mother approximately eighteen months earlier at the house of an

      acquaintance, and had been in jail with her. She testified that J.M. stayed in

      the tent with Father most of the time and that a lot of times A.M. stayed with


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019      Page 6 of 10
       her. When asked “[s]o [J.M.] stayed with his dad in the tent and [A.M.] stayed

       with you many times,” she replied “[y]eah, a few times. They were only there

       three to five days, but [A.M.] stayed inside the majority of the time.”

       Transcript Volume II at 36. She testified that she fed them and Father did not

       provide her with any food or money to feed them. When asked if Father said

       where he was going with J.M. when he would leave, she answered “[h]e would

       go scrap or whatever.” Id. at 37. She indicated that Mother came to her home

       a couple of times during that period and that Mother and Father had left the

       day before DCS removed the children and the children had stayed overnight

       with her. She indicated the children were able to enter her house and shower

       when they wanted and that she had not met Father before he moved into her

       yard.


[10]   Rowe, the DCS assessor, testified that she drove around Crawfordsville on

       August 3rd looking for Mother because no one could find her and that Mother

       was found at an apartment and appeared to be under the influence. According

       to Rowe, Mother said that she had relapsed and that Father had beat her the

       previous day, and she appeared to have fresh marks and bruises on her arms

       and legs.


[11]   FCM Tyler testified that she received a report of domestic violence on June 29,

       2018, and made contact with Father who declined to allow her to interview the

       children. She testified she received another report on July 6th that Mother was

       on methamphetamine. She indicated that she reached out to the paternal

       grandmother, who informed her that the children were living in a tent in the

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019   Page 7 of 10
       woods with Father. According to FCM Tyler, Mother met with her at the

       probation department in mid-July and stated she saw the children at least twice

       a week, that she was able to interact with them, and that Father knew that she

       was using methamphetamine. Mother told her that Father would not allow her

       to interview the children and the children were at their grandmother’s, but

       FCM Tyler was unable to confirm that Father lived with the grandmother.

       FCM Tyler testified she received another report on August 3rd that the children

       had been left at R.J.’s home without Father being present and there were

       concerns that the children lacked provisions. She indicated she visited R.J.’s

       home, took photographs of the tent, and interviewed the children separately.


[12]   According to FCM Tyler, she introduced herself to A.M. who stated that

       Father did not like the government. A.M. described an incident in which

       Mother jumped into the back of a truck while Father was driving and that his

       grandmother was driving behind them and the children were in her vehicle.

       A.M. said that they had stayed in a tent in his grandmother’s backyard, he did

       not have access to a shower, and she would not let him in the house to shower.

       A.M. also said there was a fight in which Father had tried to hit Mother and

       “he had gotten in the middle and [Father] had hit and bloodied his nose.” Id. at

       57. A.M. referred to Mother as a psycho. She testified that A.M. was dressed

       in oversized clothing, was not wearing shoes or socks, and had sores on his feet

       and calves. She also testified that J.M. said that his parents argue and yell and

       that Father hit him. FCM Tyler indicated that Mother called R.J.’s home,

       spoke with FCM Tyler, asked multiple times that the children be placed in


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019   Page 8 of 10
       foster care, and stated that Father “had taken her to the woods the day before

       and stripped her naked and beat her for twelve hours and she was terrified for

       her children’s safety.” Id. at 59. She testified the decision was made to detain

       the children because Father could not be located and he had not returned to the

       home after a significant period of time.


[13]   FCM Colley testified that she became involved on August 3rd, the day of the

       removal, and subsequently set up visits with Father, that she tried visitation in

       the community, and that Father “was erratic and absolutely inappropriate so

       now we go to an office setting” where there is a security officer and a system in

       place to contact the police. Id. at 65. She testified that she asked him to

       participate in services and provide drug screens and that “he said absolutely

       not.” Id. at 66. She indicated that she had seen Mother in jail twice and

       Mother indicated that she and Father used to use heroin, then she was on

       methamphetamine, and that, when she was released from incarceration, Father

       was on methamphetamine. According to FCM Colley, Mother indicated that,

       on August 2, 2018, “he shot her up and he used meth.” Id. at 67. She believed

       Mother had pending drug charges. She further testified that Mother “talked

       about the twelve hour beating that she received from [Father]” and “the truck

       incident where . . . the kids were present . . . and she was it was either pushed or

       maybe even jumped out, they were fighting her and [Father] took off.” Id. at

       67-68. Mother also “talked about a time at Circle K . . . she was in a pair of

       underwear, a t-shirt and a bra and he had beat her,” “she mouthed back to

       him,” and “that created more beatings.” Id. at 68.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019   Page 9 of 10
[14]   To the extent Father’s argument invites us to reweigh the evidence and reassess

       witness credibility, we are unable to do so. See In re S.D., 2 N.E.3d at 1286.

       We conclude the evidence as set forth above and in the record supports the trial

       court’s findings and its determination that the children are in need of services

       and the coercive intervention of the court is necessary.


[15]   For the foregoing reasons, we affirm the trial court’s determination that the

       children are CHINS.


[16]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-3015 | May 31, 2019   Page 10 of 10
