MEMORANDUM DECISION                                                   FILED
                                                                 Nov 04 2016, 9:28 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                          CLERK
                                                                  Indiana Supreme Court
precedent or cited before any court except for the                   Court of Appeals
                                                                       and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
MOTHER                                                    Gregory F. Zoeller
Amy Karazos                                               Attorney General of Indiana
Greenwood, Indiana                                        Robert J. Henke
ATTORNEY FOR APPELLANT FATHER                             David E. Corey
                                                          Deputy Attorneys General
Steven J. Halbert                                         Indianapolis, Indiana
Carmel, Indiana



                                             IN THE
      COURT OF APPEALS OF INDIANA
In the Matter of: J.D., a Child in                        November 4, 2016
Need of Services,                                         Court of Appeals Case No.
                                                          49A02-1604-JC-721
B.D. (Mother) and W.D.
                                                          Appeal from the Marion Superior
(Father),                                                 Court
Appellants-Respondents,                                   The Hon. Marilyn A. Moores, Judge

        v.                                                The Hon. Rosanne Ang, Magistrate
                                                          Cause No. 49D09-0508-JC-2373
Indiana Department of Child
Services,
Appellee-Petitioner,

and

Child Advocates, Inc.,

Appellee-Guardian Ad Litem.



Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016    Page 1 of 11
      Bradford, Judge.



                                           Case Summary
[1]   Appellants-Respondents B.D. (“Mother”) and W.D. (“Father”) (collectively,

      “Parents”) appeal from the juvenile court’s determination that J.D. (“Child”) is

      a child in need of services (“CHINS”). Parents adopted Child when he was

      approximately ten or eleven years old. In July of 2015, sixteen-year-old Child

      ran away from home for the sixth time. When Child was found, he lied about

      his and Parents’ identities and was placed in the Children’s Bureau. In early

      August, Child was emergency-placed in acute inpatient treatment at Options

      Behavioral Health. Meanwhile, DCS had requested permission to file a

      petition to have Child declared a CHINS, which it did approximately one week

      after Child’s identity was discovered and Parents were notified.


[2]   In mid-September of 2015, Child was moved to the Southwest Indiana Regional

      Youth Village in Vincennes (“Southwest”) and eventually placed in

      their semi-secure Male Residential Program. Appellee-Petitioner Indiana

      Department of Child Services (“DCS”) Family Case Manager (“FCM”) Sheila

      Fakhreddine had recommended that Child be so placed to protect himself and

      others. In February of 2016, the juvenile court held a hearing, and, in March of

      2016, determined Child to be a CHINS. The juvenile court ordered that Child

      be continued in his current placement at Southwest and issued a Parental

      Participation Order for Parents which ordered them to participate in home-



      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 2 of 11
      based therapy, engage in Child’s treatment as recommended, and engage in

      family therapy with Child.


[3]   As restated, both Parents contend that the juvenile court’s determination that

      Child was a CHINS due to their inability to effectively parent him was clearly

      erroneous. DCS and Appellee-Guardian Ad Litem Child Advocates, Inc.,

      contend that the juvenile court’s adjudication is not clearly erroneous. Because

      Parents have not established that the juvenile court’s judgment is clearly

      erroneous, we affirm.



                            Facts and Procedural History
[4]   Child was born on July 12, 1999, and was adopted by Parents in 2011. Prior to

      his adoption, Child had been in foster care, had exhibited behavioral issues both

      at home and in school, and had trouble socializing with his peers. According to

      foster care specialist Rikke Hopper, Child did not exhibit behaviors that would

      specifically indicate he had been sexually abused prior to his adoption. In late

      July of 2015, Child ran away from the home he shared with Parents in Marion

      County for the sixth time.


[5]   DCS Family Case Manager (“FCM”) Sheila Fakhreddine became involved

      with Child’s case on August 6, 2015, after Child was found on the street and

      taken to DCS by an Indianapolis Metropolitan Police Officer. Initially, Child

      would not correctly identify himself or Parents and was placed at Children’s

      Bureau. On or about August 11, 2015, following an incident at Children’s


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 3 of 11
      Bureau, Child was emergency-placed at Options, which led to his identification

      because Parents had placed him there for “probably about a week” in 2014. Tr.

      p. 52.


[6]   FCM Fakhreddine met with Parents after their identification. During the

      meeting, Mother indicated that Child frequently ran away and that she and

      Father had difficulty disciplining Child appropriately. Parents indicated that

      Child had run away from home six times overall and four times in 2015.

      Parents also indicated that they were unwilling at that time to take Child back

      into the home. Parents indicated that they were not aware of Child’s history of

      sexual abuse and that, if they had been aware, they would not have fostered or

      adopted him because they are unable to handle such a situation. In mid-

      September of 2015, Child was placed at Southwest, and Parents were referred

      for home-based therapy. On November 20, 2015, the juvenile court granted

      DSC’s motion to place Child in Southwest’s semi-secure residential facility

      because another youth had “received bodily injury at the hands of [Child.]” Tr.

      p. 22.


[7]   On February 23, 2016, the juvenile court held a CHINS fact-finding hearing.

      FCM Fakhreddine testified that Mother had visited with Child at Southwest

      once since his placement in September of 2015 and that Father had not visited

      at all. FCM Fakhreddine recommended psychological evaluations and home-

      based therapy for the family. During the hearing, Parents agreed that Child

      should be found to be a CHINS but argued that it should be on the basis that

      Child was substantially endangering his or another’s health pursuant to Indiana

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 4 of 11
      Code section 31-34-1-6 and not due to parental neglect, inability, or refusal to

      supply Child’s needs pursuant to section 31-34-1-1.


[8]   At the conclusion of the hearing, the juvenile court made the following

      statement on the record:

              Thank you. As far as DCS’ petition is concerned, my intention is
              to issue a ruling so that everyone knows today and a formal order
              will be issued following today’s date with the specific findings. A
              few things, the last testified information regarding the treatment
              that was attempted was the Options placement in 2014 that
              last[ed] a week or a month and that’s per [Mother’s] statement.
              In 2015, the child runs away six times. There was no
              information about treatment attempts in 2015. In fact, the
              information is as [of] the filing of the petition [Mother] has
              visited once, [Father] hasn’t visited at all. What’s also to be noted
              is that the testimony from Ms. Hopper was that at the time
              that she worked with the child he did not have these behaviors
              and that was as of the adoption approximately six years ago. I
              understand that there’s ramifications as far as a substantiation or
              not, but at the same time I don’t feel that the testimony yielded
              that parents did everything they could. I don’t feel that after
              having a child for six year[s] that the therapy and the week or
              month of 2014 falls within everything they could do, and when I
              look at these cases when it’s either a CHINS [finding pursuant to
              Indiana Code section 31-34-1-1] or a CHINS [finding pursuant to
              Indiana Code section 31-34-1-6] there are benefits to the CHINS
              [finding pursuant to Indiana Code section 31-34-1-6] to the
              parents and I understand that, but at the same time if I were to
              find that this entire situation falls in the lap of a sixteen year old,
              the therapeutic ramifications of that finding I feel are more severe,
              and so while I, I certainly it is certainly not my intention to
              financially effect your family by any means. I understand that
              that decision is somewhat mine right now, but at the same time I
              have a child who needs a lot help by parents[’] own admission

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 5 of 11
              needs a lot of help, and by parents own admission that they are
              not able to address right now, and so if I bring this sixteen year
              old child and say, “[Child,] you are in this because you are a
              danger to yourself and others”, I feel that therapeutically that the
              parents run the risk of never fulfilling their role in this child’s
              treatment and I feel that this is not a blame situation. Under
              Section 1 it is unwilling or unable. I think absolutely unable.
              Unwilling, to be honest, is yet to be determined because what I
              find when I hear that only one visit has happened, no visits have
              happened in six it’s actually that placement was September, so
              five months, I personally have to question the willingness piece,
              but I think that I’m very confident in being able to say unable and
              so for all of those reasons I am not willing to find that [Child] is a
              child in need of services under Section 6 and I am finding that
              he’s a child in need of services under Section 1. Like I said, a
              formal specific findings will be issued prior to the disposition so
              that that exists and things can be done as they need to be, but I
              am going to find that that’s true under Section 1. So, we’ll set the
              matter for disposition in about thirty days.
      Tr. pp. 66-68.


[9]   On March 16, 2016, the juvenile court issued its order finding Child to be a

      CHINS and findings supporting the determination, which provide, in part, as

      follows:

              7.     [Child] did not exhibit behaviors indicative of sexual abuse
              prior to being adopted by [Parents].
              8.   [Parents] placed [Child] at Options for “a week or a
              month” prior to the filing of this cause of action.
              9.     Since the filing of this action, [Child] has exhibited
              concerning behaviors and has been aggressive with other
              residents.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 6 of 11
               10. Since September of 2015, [Child] has been placed at
               [Southwest]. [Mother] has visited [Child] once since this
               placement. [Father] has not visited [Child] at all.
               11. [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. [Parents] have been unable to
               obtain treatment for [Child’s] mental health needs and have
               expressed that they are unable to care for [Child] with his current
               mental health needs.
               12. [Child] needs care, treatment, or rehabilitation that he is
               not receiving and is unlikely to be provided or accepted without
               the coercive intervention of the court. [Parents] require
               assistance in learning how to parent a child with [Child’s]
               emotional needs. [Child] needs assistance in addressing his
               history or trauma, current behavioral needs and aggression. The
               intervention of the court is necessary to provide all parties with
               the necessary treatment and provide [Child] with his necessary
               level of care until he can safely return to the home of [Parents].
       Mother’s App. pp. 126-27.

[10]   Mother and Father both appeal, contending that the juvenile court erroneously

       determined that Child is a CHINS on the ground that his physical or mental

       condition is seriously impaired or seriously endangered as a result of the

       inability, refusal, or neglect of Parents to supply him with necessary food,

       clothing, shelter, medical care, education, or supervision.



                                  Discussion and Decision


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 7 of 11
[11]   With respect to CHINS determinations, the Indiana Supreme Court has stated

       the following:

               [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.
               …
               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 (Ind. 2012) (footnote omitted).


[12]   Parents take issue only with the juvenile court’s reliance on Indiana Code

       section 31-34-1-1 (“Section 1”), which 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


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 8 of 11
               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.
[13]   “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) (citing

       Roark v. Roark, 551 N.E.2d 865, 872 (Ind. Ct. App. 1990)). “Rather, a child is a

       CHINS when he or she is endangered by parental action or inaction.” Id.


[14]   Parents do not argue with the juvenile court’s determination that Child is a

       CHINS, only with the basis for that finding. Parents argue that the juvenile

       court’s conclusion that Section 1 was satisfied was clearly erroneous because the

       record did not contain sufficient evidence that Child’s physical or mental

       condition was seriously impaired or seriously endangered due to their neglect.

       Instead, Parents contend that the juvenile court should have found Child to be a

       CHINS on the basis that he substantially endangered his health or the health of

       another individual:


               A child is a child in need of services if before the child becomes
               eighteen (18) years of age:
                   (1) the child substantially endangers the child’s own health or
                   the health of another individual; 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.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 9 of 11
       Ind. Code § 31-34-1-6 (“Section 6”). As mentioned, we may not reweigh the

       evidence and reverse upon a showing that the juvenile court’s decision was

       clearly erroneous. In re K.D., 962 N.E.2d at 1253. As such, we may only reach

       the question of whether the juvenile court should have applied Section 6 if we

       conclude that its determination under Section 1 was clearly erroneous.


[15]   We cannot say that Parents have established that the juvenile court erroneously

       applied Section 1 to this case. The record contains evidence sufficient to sustain

       the juvenile court’s findings that Child did not exhibit behaviors indicating

       sexual abuse before his adoption, Parents had placed Child with Options for

       only a short time in 2014, Child has run away from home six times with no

       further attempts by Parents to provide him treatment, Mother had visited Child

       once since Child’s placement at Southwest in September of 2015, Father had

       not visited Child at Southwest, Parents have indicated they are unable to

       effectively care for Child currently, and Parents are in fact unable to parent

       Child at this time. These findings support the juvenile court’s conclusion that

       Parents are unable to currently care for Child, and are perhaps also unwilling to

       do so.


[16]   Both parents offer alternate interpretations of the evidence which arguably

       could support a conclusion that Child’s need for care was not due to Parent’s

       inability to effectively care for him. In our view, the juvenile court’s

       interpretation was reasonable, even if the evidence could have potentially

       supported another interpretation. Advancing alternative interpretations of the

       evidence amounts to an invitation to reweigh the evidence, which we may not

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 10 of 11
       do. See id. Because Parents have failed to establish that the juvenile court’s

       disposition based on Section 1 is clearly erroneous, we need not address their

       claim that a disposition based on Section 6 would be more reasonable.


[17]   The judgment of the juvenile court is affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-JC-721 | November 4, 2016   Page 11 of 11
