                                                                                      FILED
                                                                                  Apr 09 2018, 6:01 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Daniel G. Foote                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                       Attorney General

                                                            David E. Corey
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of K.P.G. (Minor                              April 9, 2018
Child), a Child in Need of                                  Court of Appeals Case No.
Services,                                                   49A05-1709-JC-2053
                                                            Appeal from the Marion Superior
K.P. (Mother),                                              Court
                                                            The Honorable Marilyn A.
Appellant-Respondent,
                                                            Moores, Judge
        v.                                                  The Honorable Danielle Gaughan,
                                                            Magistrate
The Indiana Department of                                   Trial Court Cause No.
Child Services,                                             49D09-1703-JC-891
Appellee-Petitioner



Crone, Judge.




Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018                          Page 1 of 13
                                                Case Summary
[1]   K.P. (“Mother”) appeals a trial court order adjudicating her son, K.P.G., a

      child in need of services (“CHINS”). She asserts that the trial court lacked

      personal jurisdiction over her and K.P.G. and raises several other issues, all of

      which amount to a challenge to the sufficiency of the evidence to support the

      trial court’s CHINS determination. Finding that she waived her jurisdiction

      challenge and that the evidence is sufficient to support the CHINS

      determination, we affirm.


                                   Facts and Procedural History
[2]   On March 14, 2017, acting on a report of child neglect, Marion County

      Department of Child Services (“DCS”)1 sent family case manager (“FCM”)

      Olivia Payne to the local bus station. There, Payne encountered Mother and

      eighteen-month-old K.P.G., who reportedly had been in the bus station all day

      without food. Payne attempted to speak to Mother, who was largely

      noncommunicative. She learned that Mother and K.P.G. (New Jersey

      residents) had been traveling from Iowa back to New Jersey, had missed their

      connecting bus, and had been in the Indianapolis bus station for nearly eighteen




      1
        Mother has filed a motion to strike certain portions of DCS’s brief as outside the record. See Appellee’s Br.
      at 15 (paragraph 2 line 2, and footnotes 6 and 7). DCS filed an objection, pointing out that Mother had
      included the challenged information (affidavit and medical report) in her appendix and affirmed the accuracy
      of the appendix. We grant Mother’s motion to strike, noting that the information was not part of the trial
      court record, and order that the information be stricken not only from DCS’s brief but also from Mother’s
      appendix. See Appellant’s App. Vol. 2 at 56-61 (affidavit and accompanying medical report). That said, we
      note that our order to strike the information has no bearing on the ultimate outcome of this appeal.

      Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018                           Page 2 of 13
      hours. During the hour or so that Payne was with them, K.P.G. cried virtually

      the entire time, appeared unclean and tired, and looked like he did not feel well.

      Payne also noticed that each time K.P.G. tried to lean on Mother, Mother

      pushed him away. When Payne picked up K.P.G. to console him, he seemed

      feverish and was “breathing rapidly” and “really hard.” Tr. Vol. 2 at 29. After

      observing a hospital band on his wrist, Payne took him to a local children’s

      hospital, where he was evaluated and admitted. Mother said that a doctor in

      New Jersey had told her that K.P.G. had a heart murmur and that if a certain

      area did not close on its own, he would need surgery. She later testified that

      she did not want the New Jersey doctor performing surgery “cause I don’t like

      surgery.” Id. at 58.


[3]   Shortly after K.P.G. was removed and hospitalized, Mother was admitted to

      the secured mental health unit at a different Indianapolis hospital. She reported

      that she suffered from mental illness, was trying to wean herself from her

      medication, and had not taken any medication for two months. She told FCM

      Carol Davis that she was from New Jersey and had been living with relatives

      there.


[4]   On March 16, 2017, DCS filed a petition seeking to have K.P.G. adjudicated a

      CHINS. The trial court gave wardship of K.P.G. to DCS and ordered his

      placement in foster care (after hospitalization). Mother did not appear for the

      initial detention hearing, and the court ordered that she not have visitation with

      K.P.G. until she appeared in court. A week later, she appeared for the

      continued initial hearing, and pauper counsel entered an appearance on her

      Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 3 of 13
      behalf. The next day, DCS amended the petition to include K.P.G.’s putative

      father. DCS sought an expedited interstate compact placement with New

      Jersey, which the trial court granted but which ultimately was not accepted by

      New Jersey.


[5]   K.P.G. remained hospitalized, and on June 6, 2017, DCS sought and was

      granted permission for K.P.G. to undergo surgery to repair his heart defect.

      That same day, Mother filed a memorandum of law, unaccompanied by a

      motion, alleging that the trial court lacked personal jurisdiction over Mother

      and K.P.G. On June 16, 2017, DCS filed an objection to Mother’s

      memorandum, claiming that it was not properly filed, that Mother had

      appeared in person and by counsel, and that the trial court had found probable

      cause for the CHINS proceedings in March. The trial court never ruled on

      Mother’s memorandum. Following the factfinding hearing on July 11, 2017,

      the trial court issued an order accompanied by findings of fact and conclusions

      thereon adjudicating K.P.G. a CHINS. One month later, the court held a

      dispositional hearing and issued a dispositional and parental participation

      order, for K.P.G. to remain in foster care and Mother to participate in services.

      Mother now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 4 of 13
                                       Discussion and Decision

           Section 1 – Mother failed to properly contest the issue of
             personal jurisdiction and therefore has waived it for
                           consideration on appeal.
[6]   Mother claims that the trial court lacked personal jurisdiction over her and

      K.P.G. because they are New Jersey residents who were present in Indiana

      merely because of a layover during a bus trip. “Personal jurisdiction refers to a

      court’s power to impose judgment on a particular defendant.” Boyer v. Smith,

      42 N.E.3d 505, 509 (Ind. 2015). A challenge to personal jurisdiction is a

      question of law, which we review de novo. Id. at 508.


[7]   Indiana Trial Rule 12(B)(2) permits a party to raise lack of personal jurisdiction

      as a defense. “A party can waive lack of personal jurisdiction and submit

      himself to the jurisdiction of the court if he responds or appears and does not

      contest the lack of jurisdiction.” Heartland Res., Inc. v. Bedel, 903 N.E.2d 1004,

      1007 (Ind. Ct. App. 2009). Trial Rule 12(B) provides a mechanism for raising

      defenses such as a lack of jurisdiction or insufficient service of process by

      requiring that the defenses or objections be asserted in the responsive pleading

      (where one is required) or by motion. The rule further states,


              A motion making any of these defenses shall be made before
              pleading if a further pleading is permitted or within twenty [20]
              days after service of the prior pleading if none is required. If a
              pleading sets forth a claim for relief to which the adverse party is
              not required to serve a responsive pleading, any of the defenses in
              section (B)(2), (3), (4), (5) or (8) is waived to the extent
              constitutionally permissible unless made in a motion within

      Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 5 of 13
              twenty [20] days after service of the prior pleading. No defense
              or objection is waived by being joined with one or more other
              defenses or objections in a responsive pleading or motion.


[8]   Here, Mother was not required to file a responsive pleading to the CHINS

      petition. As such, she had twenty days from the date of service of the petition

      to file a motion challenging personal jurisdiction. The chronological case

      summary shows the following: on March 16, 2017, DCS filed the CHINS

      petition; on March 24, 2017, Mother appeared before the trial court; on March

      27, 2017, counsel entered an appearance on Mother’s behalf; on March 28,

      2017, DCS amended the CHINS position to include K.P.G.’s putative father;

      and on June 6, 2017, Mother submitted a memorandum (without an

      accompanying motion) raising for the first time the defense of lack of personal

      jurisdiction. Claiming that minimum contacts were lacking, Mother stressed in

      her memorandum that she and K.P.G. were just passing through Indiana and

      had never paid taxes, received government benefits, attended school, or resided

      in Indiana. Appellant’s App. Vol. 2 at 79. Eighty-two days elapsed between

      the filing of the CHINS petition and Mother’s submission of her memorandum

      first addressing the defense of lack of personal jurisdiction. More than seventy

      days elapsed from Mother’s appearance in person and by counsel to the time of

      her personal jurisdiction memorandum and from the date of DCS’s amended

      petition and Mother’s memorandum. Simply put, Mother submitted herself to

      the trial court’s jurisdiction by appearing in court and failing to contest personal

      jurisdiction at that time or within the time limitations found in Trial Rule 12(B).



      Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 6 of 13
       As a result, she may not contest the issue on appeal. See Heartland Res., 903

       N.E.2d at 1007.


         Section 2 – The evidence is sufficient to support the CHINS
                               determination.
[9]    Mother raises several arguments that essentially are challenges to the sufficiency

       of the evidence to support the CHINS determination. When reviewing the

       sufficiency of evidence, we give due regard to the trial court’s ability to assess

       the credibility of witnesses. In re Des.B., 2 N.E.3d 828, 836 (Ind. Ct. App.

       2014). We neither reweigh evidence nor judge witness credibility; rather, we

       consider only the evidence and reasonable inferences most favorable to the trial

       court’s decision. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). Where the

       trial court issues findings of fact and conclusions thereon, we apply a two-tiered

       standard of review. In re R.P., 949 N.E.2d 395, 400 (Ind. Ct. App. 2011). We

       consider first whether the evidence supports the findings and then whether the

       findings support the judgment. Id. We will set aside the trial court’s findings

       and conclusions only if they are clearly erroneous and a review of the record

       leaves us firmly convinced that a mistake has been made. Id. “Findings are

       clearly erroneous only when the record contains no evidence to support them

       either directly or by inference.” K.B. v. Ind. Dep’t of Child Servs., 24 N.E.3d 997,

       1001-02 (Ind. Ct. App. 2015) (citation omitted). “A judgment is clearly

       erroneous if it relies on an incorrect legal standard.” Id. at 1002.


[10]   In a CHINS proceeding, DCS bears the burden of proving by a preponderance

       of the evidence that a child meets the statutory definition of a CHINS. In re
       Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 7 of 13
       N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing

       CHINS status, DCS must prove that the child is under age eighteen,


               (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.

       Ind. Code § 31-34-1-1.


[11]   Although the acts or omissions of one or both parents can cause a condition

       that creates the need for court intervention, the CHINS designation focuses on

       the condition of the children rather than on an act or omission of the parent(s).

       N.E., 919 N.E.2d at 105. In other words, despite a “certain implication of

       parental fault in many CHINS adjudications, the truth of the matter is that a

       CHINS adjudication is simply that – a determination that a child is in need of

       services.” Id. (citations omitted).


[12]   Mother maintains that the trial court erred in concluding that K.P.G. has been

       seriously impaired or endangered due to any inability, refusal, or neglect on her

       part to provide him with necessities or adequate supervision absent the court’s

       coercive intervention. She does not specifically challenge any of the court’s

       findings, and as such, we simply determine whether the unchallenged findings

       Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 8 of 13
       are sufficient to support the judgment. T.B. v. Ind. Dep’t of Child Servs., 971

       N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied.


[13]   The trial court’s unchallenged findings of fact include the following:2


                  4. Mother and K.P.G. came to the attention of DCS in March of
                  2017 when DCS was called to investigate a report of Mother and
                  K.P.G. being in the Indianapolis Greyhound Bus Station for
                  approximately 18 hours after Mother had missed a bus to return
                  back to New Jersey where her family, including her mother,
                  lives. K.P.G. was wearing a hospital band and it was reported
                  that he had not eaten all day and that Mother was not responsive
                  to his needs.

                  5. When the DCS assessment worker arrived at the Greyhound
                  bus station, she observed K.P.G. to be crying the whole first hour
                  that she was there and Mother never tended to him. K.P.G.
                  would lean up against Mother and Mother would bump him
                  away with her arm. Additionally, K.P.G. felt warm to the touch,
                  was breathing rapidly and was wearing a hospital band.

                   6. The police were called as well as DCS and Mother was taken
                  to the secured mental health unit at Methodist Hospital and held
                  for 72 hours. K.P.G. was taken to Riley Hospital because he
                  appeared lethargic, was breathing rapidly and was wearing a
                  hospital band.

                  7. When Mother was released from Methodist she contact[ed]
                  DCS. DCS offered to refer mental health services but Mother
                  declined. Mother stated that she “was grown and did not need
                  help.” DCS offered to refer home based case management to
                  assist Mother with housing, transportation and to facilitate the



       2
           The findings refer to K.P.G. by his first name. We refer to him by his initials.


       Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018               Page 9 of 13
        treatment of mental health needs but Mother declined that
        service as well.

        8. K.P.G. has a heart condition and had heart surgery on June
        23, 2017 and K.P.G. is currently hospitalized.

        9. At the time of the incident in the Greyhound Bus Station,
        Mother was aware that K.P.G. had a heart condition.

        10. By her own admission, Mother has “had mental illness for a
        while” and “is trying to wean” herself off of the medicine.

        11. Mother has not stayed in recent contact with DCS and DCS
        is not aware of where Mother is living.

        12. Mother has not seen K.P.G. since before his surgery on June
        23, 2017.

        13. Throughout the trial Mother was very agitated, snorting at
        times, laughing, shaking her head and muttering to herself while
        others testified. Mother’s testimony was difficult to follow as
        Mother rambled and went off on tangents. Mother frequently
        muttered, “desperate, how desperate” shaking her head. On one
        occasion Mother randomly stated to the DCS attorney who was
        questioning her, “You got kids, I got kids. You got feelings, I got
        feelings.”

        l4. 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 to supply the child with necessary
        food, clothing, shelter, medical care, education, or supervision.
        By her own admission, Mother has mental health issues and is
        not consistent with treatment and has been “weaning” herself off
        of the medication. Mother was observed in the Greyhound Bus
        Station to be non-responsive to K.P.G.’s needs. Mother had
        been in the bus station for quite some time and K.P.G. did not
        appear well. Mother was observed in the courtroom today to be

Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 10 of 13
               agitated and talking to herself. Mother’s responses to questions
               were rambling and non-responsive. Though there was no stated
               mental health diagnosis, Mother’s behavior in Court during trial
               indicate[s] mental health issues that impair her ability to care for
               K.P.G., especially because of his young age and medical needs.

               15. The child needs care, treatment, or rehabilitation that the
               child is not receiving and is unlikely to be provided or accepted
               without the coercive intervention of the Court. Mother needs
               mental health treatment so that she can appropriately care for her
               child and Mother lacks the insight into her mental health issues
               to seek treatment without the coercive intervention of the Court.
               K.P.G. has serious medical needs and the coercive intervention
               of the Court is necessary to ensure that K.P.G. receives the
               appropriate treatment.


       Appellant’s App. Vol. 2 at 102-04.


[14]   Mother claims that the trial court’s findings fail to support its conclusion that

       K.P.G. was endangered by her inability or unwillingness to provide him with

       care and treatment absent its coercive intervention. Emphasizing that she and

       K.P.G. were merely passing through Indiana, she relies heavily on our decision

       in M.K. v. Indiana Department of Child Services, 964 N.E.2d 240, 242 (Ind. Ct.

       App. 2012). There, we reversed a CHINS determination for three young

       children whose mother brought them to Indiana to look up relatives after smoke

       damage from a fire in their building had temporarily displaced them from their

       Maryland apartment. Id. at 245. There, we emphasized the unusual

       circumstances, which included not only the fire in an adjacent apartment but

       also a blizzard that resulted in their predawn arrival in Indiana, and the father’s

       emergency trip to Texas to tend to his sick mother. Id. at 245-46. Both parents

       Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 11 of 13
       were employed and had a savings account, and the mother had brought cash for

       food and lodging in Indiana. Id. She asked a police officer to take her and the

       children to an inexpensive motel, but the officer took them to a shelter instead.

       Id. at 246. The evidence simply did not support the trial court’s finding that the

       mother had relocated to Indiana without a plan for housing and that she was

       unwilling or unable to provide the children with stable housing.


[15]   We find M.K. distinguishable. While both cases involved mothers and children

       who are not Indiana residents, the trial court’s findings in M.K. emphasized a

       perceived housing deficiency as its basis for the CHINS adjudication, where the

       evidence showed that the mother in fact had cash and a plan for lodging, and

       that she had simply fallen prey to a “series of unfortunate and unforeseen

       events.” Id. In contrast, here, the trial court based its decision on K.P.G.’s

       serious health problems and Mother’s mental illness, both of which were

       unfortunate but not unforeseen. Mother knew that K.P.G. had a serious heart

       defect that would likely require surgery, yet she admitted that she had not

       consented to surgery in New Jersey because she did not like surgery. FCM

       Payne’s astute and prompt response to K.P.G.’s labored breathing at the bus

       station resulted in his hospitalization, treatment, and eventual surgery. As for

       Mother’s mental illness, she admitted that she was trying to wean herself from

       her prescribed medication and that she had not taken it for the two months

       preceding the CHINS proceedings. In short, her untreated mental illness left

       her unable to make critical decisions concerning K.P.G.’s care and treatment.

       FCM Payne’s potentially lifesaving intervention underscores Mother’s need for


       Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 12 of 13
       the programs and services ordered by the CHINS court. Based on the

       foregoing, we conclude that the evidence is sufficient to support the CHINS

       determination. Accordingly, we affirm.


[16]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1709-JC-2053 | April 9, 2018   Page 13 of 13
