                                                                        FILED
                                                                   Aug 18 2016, 8:06 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                        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:                                          August 18, 2016
A.H. (Minor Child), Child in                               Court of Appeals Case No.
Need of Services,                                          49A04-1601-JC-42
and                                                        Appeal from the Marion Superior
                                                           Court
A.H. (Mother),
                                                           The Honorable Marilyn A.
Appellant-Respondent,                                      Moores, Judge
                                                           The Honorable Rosanne T. Ang,
        v.                                                 Magistrate
                                                           Trial Court Cause No.
The Indiana Department of                                  49D09-1507-JC-2165
Child Services,
Appellee-Petitioner




Baker, Judge.

Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016                    Page 1 of 12
[1]   When a parent is unwilling or unable to provide help to his or her child,

      Indiana’s Department of Child Services can seek the “coercive intervention” of

      a court to compel that parent to provide help through a Child in Need of

      Services (CHINS) adjudication, but this intrusion of the coercive power of the

      State into family life is “reserved for families who cannot meet those needs

      without coercion—not those who merely have difficulty doing so.” In re S.D., 2

      N.E.3d 1283, 1285 (Ind. 2014). Nor is that power appropriately applied to a

      parent who seeks reasonable care for her traumatized child, merely because that

      care is ultimately unsuccessful through no fault of the parent.


[2]   A.H. (Mother) appeals the juvenile court’s order finding her daughter, also

      initialed A.H. (Child), to be a CHINS. Mother argues that the evidence is

      insufficient to support the CHINS adjudication. Finding no evidence that the

      coercive power of the court is necessary to ensure Child receives care, we

      reverse.


                                                       Facts
[3]   Child has had a difficult past. She was bullied in school for being interracial.

      The bullying became so serious that she was admitted to a psychiatric hospital.

      At fourteen years old, she became pregnant, and when she was eight months

      pregnant, she was raped. As a result of these traumas, Child slept poorly and

      was often violent. Police were called to the house several times, and Child was

      arrested on some of these occasions. She has been diagnosed with anxiety




      Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016   Page 2 of 12
      disorder, separation anxiety, and depression. Mother has taken Child to receive

      mental health care since Child was in fifth or sixth grade.


[4]   In June 2015, the Indiana Department of Child Services (DCS) became

      involved with the family when it received a report that Child had struck her

      brother. A family case manager (FCM) spoke to Mother, but Child refused to

      speak to the FCM. Mother informed the FCM that she had been taking Child

      to mental health service providers but that Child refused to participate in the

      services.


[5]   On July 14, 2015, DCS filed a petition alleging that Child was a Child In Need

      of Services (CHINS) because her “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.” Appellant’s

      App. p. 26. That same day, the juvenile court held an initial hearing on the

      petition. Mother was not present, as DCS had not yet served her. Along with

      ordering continued in-home placement of Child, the juvenile court ordered

      therapy and a psychological evaluation for Child, and ordered “DCS to staff the

      matter for possible services through Cross Systems of Care.” Id. at 38-39.


[6]   At the next hearing, two weeks later, DCS still had not served Mother, and still

      had not arranged any services. The juvenile court noted, “Mother is willing to

      participate in services.” Id. at 44. It also “order[ed] DCS to ensure that the




      Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016   Page 3 of 12
      services ordered at the initial hearing be arranged for the family by the end of

      today.” Id. at 44-45. Another hearing was set for a week later.


[7]   At that next August 4, 2015, hearing, DCS still had not arranged a

      psychological evaluation. So again, the juvenile court “order[ed] DCS to

      ensure that services that were ordered at the last hearing [are] in place.” Id. at

      57. At the next hearing on August 18, DCS still had not made the referral for a

      psychological examination. At the next hearing on August 25, DCS still had

      not arranged a psychological evaluation, but told the juvenile court that it “will

      be in place soon.” Id. at 66. The juvenile court “admonishe[d] DCS for not

      having the referral for the psychological evaluation for [Child] in place [and]

      order[ed] that DCS have the psychological evaluation . . . in place for [Child]

      within 48 hours.” Id. DCS, however, did not comply with this order either.


[8]   On September 2, Child became violent with her sister. Mother called the police

      and asked them to take Child to the hospital, where Mother hoped a

      psychological evaluation could be completed. DCS eventually referred Mother

      to an organization named Damar for a mental health evaluation. However,

      when Mother followed up on DCS’s referral, Damar informed her that it only

      works with mentally handicapped persons, not mentally ill persons, and does

      not perform mental health evaluations.


[9]   The first psychological evaluation of Child began at her home on September 14,

      2015, by Midtown Mental Health. Midtown required a second evaluation.

      When Midtown sent out a representative on October 14, 2015, however, that


      Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016   Page 4 of 12
       individual did not have the training required to complete the evaluation, and so

       left. No one from Midtown contacted Mother again. A psychological

       evaluation was finally completed in November 2015 by Caring Associates in

       Brownsburg. Because of DCS’s four-month delay from the initial court order,

       the results of the evaluation were not available at the time of the November 16

       and 23 fact-finding hearing.


[10]   At that hearing, several witnesses, including Mother, told the juvenile court that

       Child was benefitting from therapy. At the conclusion of the hearing, the

       juvenile court adjudicated Child a CHINS. The juvenile court did not make a

       written set of findings, but ended the hearing by saying the following:


              Mother is not unwilling to provide for Child’s needs
              “but the statute also says unable and I do think that you’ve been unable
               for whatever reason to get the help that your daughter needs”
              “we’re talking about violent outburst, whether it’s you, other adults who
               live in the home.”
              “Your own stated words as far as how [Child] would be as a mother 1 if
               she did not get help”
              Child “has a lot of issues and when I hear that she has been displaying
               issues since she was in the fifth or sixth grade to allow that much time to
               pas[s] for us not to get the help she needs that is an issue”
              Child’s therapist “has made some headway in [getting Child to open up
               therapeutically] and that is something that even you’ve admitted”
              “The condition of this child is that she needs the help that we’re trying to
               offer, that [Mother] you in fact are saying that you would like for her to
               get and so while I understand why these proceedings become adversarial
               at times I don’t think we have that different of a goal.”



       1
           Child has a son, who has been adjudicated a CHINS. Child’s son is not part of the present case.


       Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016                          Page 5 of 12
            “This isn’t something that’s done immediately and so I think services still
             need to remain in place and they are going to remain in place.”

       Tr. p. 258-60.


[11]   At a subsequent dispositional hearing in December 2015, DCS informed the

       juvenile court that Mother was doing everything she could to get help for Child.

       DCS explained that progress was held up because Child “really doesn’t want

       the help.” Id. at 268. The juvenile court entered its dispositional order on

       December 15, 2015, and Mother now appeals.2


                                     Discussion and Decision
[12]   Initially, we note that, as part of her appeal, Mother has challenged a January

       12, 2016, juvenile court order issued after a periodic review hearing. At that

       hearing, DCS recommended that the CHINS case be closed, since Child would

       turn eighteen years old the following day. Both parents agreed. Nevertheless,

       the juvenile court denied that request. That order, however, was issued after

       the dispositional order that is currently being appealed, and is therefore not

       properly before us.




       2
         In Mother’s reply brief, she contends that a portion of DCS’s brief is not supported by the record, and
       finishes by saying, “This portion of Appellee’s Brief should be stricken because DCS fails to cite to the
       transcript or Appendix or offer other support for those propositions.” Appellant’s Reply Br. p. 8. DCS took
       this to be a motion to strike, to which it responded with a motion in opposition. We understand Mother’s
       sentence to be a rhetorical device to critique DCS, not a formal motion, and therefore decline to issue any
       ruling on this matter.

       Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016                        Page 6 of 12
[13]   Mother also argues that the evidence is insufficient to support the juvenile

       court’s CHINS finding. Our Supreme Court has explained the nature of

       a CHINS proceeding and appellate review of a CHINS finding as follows:


               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.R., 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 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.


               There are three elements DCS must prove for a juvenile court to
               adjudicate a child a CHINS. DCS must first prove the child is
               under the age of eighteen; DCS must prove one of eleven
               different statutory circumstances exist that would make the child
               a CHINS; and 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. In re N.E., 919
               N.E.2d at 105.


       In re K.D., 962 N.E.2d 1249, 1253–54 (Ind. 2012) (footnote omitted).


[14]   Here, DCS alleged that Child was a CHINS pursuant to Indiana Code section

       31–34–1–1, which provides as follows:

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



       Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016     Page 7 of 12
                        (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.


       Our Supreme Court has interpreted this provision to require “three basic

       elements: that the parent's actions or inactions have seriously endangered the

       child, that the child's needs are unmet, and (perhaps most critically) that those

       needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,

       1287 (Ind. 2014). Because the juvenile court did not adopt formal findings, we

       review this case 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.


[15]   We find our Supreme Court’s decision in S.D. to be instructive. In that case, a

       single mother of five children struggled to care for two-year-old S.D., who had

       severe health problems. S.D., 2 N.E.3d at 1285. S.D. required special medical

       care, and hospital policy would not allow her to rejoin her mother until her

       mother found a second caregiver and completed training to deal with S.D.’s


       Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016        Page 8 of 12
       condition. Id. at 1286. DCS acknowledged that the mother had “done a lot,”

       but it sought the CHINS adjudication because she “received a lot of help and

       she still needs a lot of help.” Id.


[16]   Our Supreme Court reversed the CHINS adjudication, focusing particularly on

       the “most critical[]” element: whether the care was “unlikely to be provided or

       accepted without the coercive intervention of the court.” Id. at 1287; I.C. § 31-

       34-1-1(2)(B). The Court concluded that the evidence did not show “that she

       would be unable to correct her one lingering issue without the ‘coercive

       intervention of the court.’ DCS’s desire to help this struggling family was

       understandable, but the facts simply do not justify subjecting this family to State

       compulsion.” Id. at 1285.


[17]   Likewise, in this case, we can find no evidence in the record to support a

       finding that Mother would not provide care to Child without the coercive

       intervention of the court. At the fact-finding hearing, the juvenile court itself

       told Mother “I don’t think you are unwilling . . . to get help.” Tr. p. 258. It

       also conceded, “I understand that you can’t make a seventeen year old talk to

       someone, that therapeutically you can’t make her open [up].” Id. at 259. It

       acknowledged, “DCS can’t make, wave a magic wand and help your child

       immediately any more than potentially what you could have and so long term

       this is a long road.” Id. at 260.


[18]   Instead, in making the CHINS adjudication, the juvenile court focused on a

       particular word of the statute: “the statute also says unable and I do think that


       Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016   Page 9 of 12
       you’ve been unable for whatever reason to get the help that your daughter

       needs.” Tr. p. 257.


[19]   But the statute does not simply say “unable,” it focuses on a parent’s “inability,

       refusal, or neglect . . . to supply the child with necessary food, clothing, shelter,

       medical care, education, or supervision.” I.C. § 31-34-1-1(1) (emphasis added).

       There is no evidence in the record that Mother failed “to supply” Child with the

       help she needs; there are no missed appointments with a therapist, there are no

       services Mother refused, there are no medications that Mother was unable to

       provide.


[20]   We understand DCS’s and the juvenile court’s frustration that Child has not yet

       recovered from the unimaginable traumas that she suffered. But unless this lack

       of recovery is attributable to some action or omission by Mother, the lack of

       recovery alone cannot support a CHINS determination.


[21]   To make a simple analogy: if a child is sick, and his parents take him to every

       scheduled doctor’s appointment, but the doctors are unable to cure the child’s

       disease, the child’s continued illness clearly could not support a CHINS

       adjudication. And yet, according to the record before us, that is essentially

       what has happened in this case. As Mother argued to the juvenile court:


               How can you [adjudicate Child a CHINS] when I have done
               everything to get my child some help and because counselors, the
               juvenile system, everything has not been able to do anything then
               that’s placed on me? . . . I took my daughter to a rape center,
               they wouldn’t help her. I’ve taken my daughter to other places,
               they wouldn’t help her . . . As a rape victim they said the first

       Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016    Page 10 of 12
               thing you have to do for a child is to be patient. I am doing
               everything that I’ve been ordered to do and what I know I need
               to do to help her.


       Tr. p. 261.


[22]   The CHINS adjudication is particularly troubling in this case, given DCS’s

       inexcusable lack of diligence in referring Child for a psychological evaluation.

       The juvenile court ordered DCS to refer Child for an evaluation on July 14,

       2015. DCS did not do so. It then failed to comply with at least four additional

       court orders to refer Child for an evaluation. The delay lasted for so long that

       the results of the evaluation were not ready at the fact finding hearing four

       months later. For DCS to fail to refer Child to a psychological evaluation, for

       four months and despite multiple court orders, and then to pursue a CHINS

       petition in which it claims that Mother was unable to supply Child with

       medical care, is simply indefensible. Moreover, we question why the juvenile

       court put absolutely no consequences in place for DCS’s repeated failures to

       comply with court orders. DCS should not be permitted to violate court orders

       with impunity.


[23]   All of the evidence in the record, including the informal findings of the juvenile

       court, show that Mother is willing and able to engage with all needed services

       on behalf of Child. Since this is the case, there is insufficient evidence that

       medical care “is unlikely to be provided or accepted without the coercive

       intervention of the court.” I.C. § 31-34-1-1(2)(B).



       Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016   Page 11 of 12
[24]   The judgment of the juvenile court is reversed and remanded with instructions

       to vacate the CHINS adjudication.


       Najam, J., concurs.
       Vaidik, C.J., concurs in result.




       Court of Appeals of Indiana | Opinion 49A04-1601-JC-42 | August 18, 2016   Page 12 of 12
