Opinion
24A-JC-1841
12-27-2024
In the Matter of: A.W. (Child in Need of Services), and Indiana Department of Child Services, Appellants v. S.W. (Mother) and B.W. (Father), Appellees
ATTORNEYS FOR APPELLANT A.W. JOEL C. WIENEKE WIENEKE LAW OFFICE, LLC BROOKLYN, INDIANA RACHEL VILENSKY CHILD ADVOCATES, INC. INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLANT INDIANA DEPARTMENT OF CHILD SERVICES THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA DAVID E. COREY SUPERVISING DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Franklin Circuit Court The Honorable J. Steven Cox, Judge Trial Court Cause No. 24C01-2305-JC-21
ATTORNEYS FOR APPELLANT A.W. JOEL C. WIENEKE WIENEKE LAW OFFICE, LLC BROOKLYN, INDIANA RACHEL VILENSKY CHILD ADVOCATES, INC. INDIANAPOLIS, INDIANA
ATTORNEYS FOR APPELLANT INDIANA DEPARTMENT OF CHILD SERVICES THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA DAVID E. COREY SUPERVISING DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Brown, Judge
[¶1] The Indiana Department of Child Services ("DCS") appeals the trial court's order that A.W. ("Child") be placed in a residential treatment facility. We reverse and remand.
Facts and Procedural History
[¶2] In May 2023, DCS filed a petition alleging Child, born in July 2006, was a child in need of services ("CHINS"). DCS alleged that S.W. ("Mother") and B.W. ("Father," and together with Mother, "Parents"), who are the adoptive parents of Child, refused to pick up Child following an acute stay at Harsha Behavioral Health Center despite Child being medically discharged and recommended for outpatient services. The court held an initial hearing and accepted the recommendation of DCS that Child be placed in a foster home. In August 2023, the court held a factfinding hearing and admitted an evaluation by Dr. Richard T. Rowlison, PhD, HSPP, Clinical Psychologist at Choices, dated March 10, 2023. In September 2023, the court issued an order finding that Child was a CHINS. The court held a dispositional hearing and, on October 25, 2023, issued a order providing that Child shall remain in her current home and that DCS shall make Child available to Wernle Youth and Family Treatment Center to determine what, if any, residential services would be available to Child at its facility.
[¶3] On November 16, 2023, the court issued an Order on Periodic Review stating Parents had not enhanced their ability to fulfill their parental obligations, Child was in foster care and in need of a therapeutic foster home, Parents remained unwilling to have Child return to their home, and DCS was to find a residential facility that would evaluate Child in person to determine what services would be available to Child at its facility. On January 23, 2024, DCS filed a motion to reconsider stating that it had contacted multiple facilities and had been unable to secure an in-person evaluation of Child at a residential facility, that all of the mental health professionals who worked with Child since April 2023 recommended that she remain in foster care and receive outpatient treatment, that none of them believed it is in her best interest to receive residential treatment, and that the only people who recommended residential treatment were Parents, who were refusing to visit with Child in person. The court denied the motion.
[¶4] DCS received a clinical services evaluation dated February 9, 2024, from Maximus stating that a qualified individual assessment was completed and Child was not recommended for residential treatment in a facility designated as a qualified residential treatment program ("QRTP") or a facility that is exempt from the QRTP requirements. On March 18, 2024, DCS filed a Modification Report. On March 19, 2024, the court held a hearing, took the matter of whether to modify the dispositional order under advisement, and approved a request by DCS for medication for Child.
[¶5] On June 5, 2024, the court entered an order providing:
The Court, having reviewed the entire file, finds that [Child] has been in multiple placements which have failed to make significant advances under the current Dispositional Order. Foster care placements have not provided the desired stability as contemplated in the Dispositional Decree to be successful. The Court is now appraised [sic] by [DCS] that [Child] has been removed again and placed even farther from the home county. The Court hereby modifies the current Dispositional Decree and Orders that [Child] be admitted to residential treatment irrespective of the recommendation contained in the Maximus Evaluation which is already of record in this cause in an effort to provide stability, structure and services which the Court deems as essentially necessary to achieve the stated goals of the Dispositional Order.
Appellant's Appendix Volume III at 67.
[¶6] On June 28, 2024, DCS filed a "Motion to Reconsider" arguing there was no evidence from any qualified professional that would support a finding that residential treatment is medically necessary or advisory for Child, a residential treatment program will likely not provide Child with increased stability compared to placement in the community, and Child is currently in a foster home without concern and is receiving services. Id. at 72. DCS attached the February 9, 2024 Maximus report and a psychological evaluation from Providence House dated March 16, 2024, and amended April 8, 2024, concluding that Child does not need residential treatment services. DCS also filed a motion to stay the court's June 5, 2024 order. On July 2, 2024, the court denied DCS's motions.
[¶7] On July 11, 2024, DCS filed a Motion for Hearing on Placement Change stating that Child was accepted into a program at Open Arms Christian Ministries and that Parents objected to the placement because it was a group home and requested a more restrictive residential program. The court denied the motion. On July 16, 2024, DCS filed a Motion for Clarification stating that a residential treatment facility with a QRTP designation may include a child caring institution, a group home, or a private secure facility and requesting that the court clarify the type of residential treatment facility to which its June 5, 2024 order referred. The next day, Child filed an objection stating that she was eighteen years old and the court stated no justification for ordering the most restrictive setting for placement. The court issued an order stating that its June 5, 2024 order authorized any residential placement. DCS filed a notice of appeal. Child filed with this Court a motion to stay the trial court's June 5, 2024 order, and we granted the motion.
Discussion
[¶8] DCS argues the trial court abused its discretion when it sua sponte modified its dispositional decree and ordered Child into residential placement. It maintains the Maximus evaluation ordered by the court as part of the QRTP process did not recommend residential placement, the complete consensus of the mental health professionals involved in Child's evaluations and treatment was that Child did not require placement in a residential facility, and Parents provided no testimony from providers or other experts to counter this evidence. DCS also argues that the number of foster home placements did not warrant the modification to residential treatment and with very few exceptions the changes in foster care placement did not result from Child's behaviors. Child argues that, "[p]lacement in a foster home, coupled with intensive treatment, was undeniably the least restrictive and most appropriate setting available" and "DCS presented expert evidence from mental health professionals to that end, which was not rebutted by anything other than opinions from [Parents]." A.W. Appellant's Brief at 25.
[¶9] We note that Parents did not file an appellees' brief. When an appellee fails to submit a brief, we do not undertake the burden of developing arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Bixler v. Delano, 185 N.E.3d 875, 877 (Ind.Ct.App. 2022). Prima facie is defined as "at first sight, on first appearance, or on the face of it." Id. This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Id. at 878.
[¶10] We review a trial court's dispositional order for an abuse of discretion to be guided by the considerations in Ind. Code § 31-34-19-6. K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006). Ind. Code § 31-34-19-6(a) provides:
If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that:
(1) is:
(A) in the least restrictive (most family like) and most appropriate setting available; and
(B) close to the parents' home, consistent with the best interest and special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the child's parent, guardian, or custodian;
(5) provides a reasonable opportunity for participation by the child's parent, guardian, or custodian; and
(6) provides a reasonable opportunity for the child's parent who:
(A) is incarcerated; and
(B) has maintained a meaningful role in the child's life;
to maintain a relationship with the child.Ind. Code § 31-34-19-10 provides that the court shall accompany its dispositional decree with written findings and conclusions upon the record concerning, among other things, the needs of the child for care, treatment, rehabilitation, or placement and the court's reasons for the disposition.
[¶11] Clinical Psychologist Dr. Rowlison stated in his report that Child's presentation was consistent with diagnoses of post-traumatic stress disorder, disruptive mood dysregulation disorder, and borderline intellectual functioning. His report stated:
[Child] requires structure, but she would likely regress in a residential treatment facility. Residential units are typically loud and are characterized by frequent conflict between residents, as well as conflict between residents and staff. While residential programs do have "walls" and "staff" to manage out-of-control behavior, this type of environment is constantly "triggering" for adolescents with complex trauma histories. In addition, very few residential programs offer the focused, trauma-informed treatment that [Child] requires.DCS Exhibit No. 1 at 6. The report stated that Child would benefit from evidence-based therapy and a therapeutic camp or after-school program that provides structured time away from home and "[i]t is important that any such program be trauma-informed and not 'correctional' or 'boot camp' in its approach." Id. The report stated Child needed to develop functional relationship skills and would benefit from participation in a structured group activity that she enjoys.
[¶12] Nancy Fisher, a licensed clinical social worker, testified that DCS did not recommend a residential treatment program for Child, that Child needed to develop skills to function as an adult outside of a residential facility, and that many studies have shown that residential treatment is counterproductive and institutionalizes children. She testified that she did not have a recommendation from any mental health provider that Child needed a residential program. She recommended that Child remain in the outpatient and home setting and indicated that placement in a residential facility would be a barrier to Child developing social skills and the skills to live independently. DCS submitted materials indicating that all of the mental health professionals who worked with Child recommended that she remain in foster care and receive outpatient treatment and that none of the providers believed that it is in Child's best interest to receive residential treatment.
[¶13] The February 9, 2024 evaluation by Maximus stated that a qualified individual assessment was completed and Child was not recommended for residential treatment in a facility designated as a QRTP or a facility that is exempt from the QRTP requirements. The assessment stated that Child was removed from Parents in May 2023 after they chose not to pick her up from Harsha after she was not recommended for residential treatment. The report indicated that Child's last hospitalization was in April 2023 and she had diagnoses of Autism Spectrum Disorder, Reactive Attachment Disorder, Post Traumatic Stress Disorder, and Oppositional Defiant Disorder. The assessment discussed Child's strengths, including that she is insightful and enjoys socializing and has done well with making new friends while moving placements and schools, she has been setting goals and plans to attend college, she feels she is receiving support from her new school, she worked at McDonald's and the YMCA and did well with both jobs, she actively engages in therapy and independent living services, she is working to address her trauma and gain independence, her behaviors were improving and she had gone almost a year without any hospitalization, and she is learning to advocate for herself when she needs assistance.
[¶14] The report further stated that Child had a conflictual relationship with Parents and had not spoken to them since December 2023 because their phone calls became upsetting to her and were suspended by her treatment team. The report stated that Child requires support gaining social skills, there is a history of trauma and sexual abuse, Child has been in six foster placements since leaving Harsha, all of her placements have been temporary while her treatment team searches for a more permanent placement, and Child has maintained safety in all homes and has had no behaviors of harming herself or others. It indicated that Parents were previously cooperative but most recently had not been receptive to alternative suggestions by the treatment team. The report noted that Parents believe that a residential treatment facility is the best option for Child but that Child's family case managers, foster mother, therapist, and foster care worker all believe that foster care is the best or most appropriate option for Child. The assessment concluded that a family setting or less restrictive placement with supportive services was determined to be the most appropriate level of care for Child.
[¶15] The psychological evaluation by Providence House in April 2024 provides that Child was removed from her biological family in 2013 due to reports of sexual abuse, that she was adopted in 2018 by Parents after she had been placed with them for one year, that collateral records indicated multiple allegations of abuse and neglect against Child's adoptive family since being adopted, and that Child was removed from Parents in May 2023 and was placed in a foster home. The report indicated that Parents felt that Child required residential treatment and that Parents were resistant to implementing some of the parenting recommendations made by Child's treatment teams. The report set forth a summary of a clinical interview with Child and the results of an individual assessment evaluating Child's mental health, anxiety, behaviors, and trauma. The report found that the evaluation "has provided a clear enough picture of [Child's] functioning to rule out the need for residential treatment at this time." Appellant's Appendix Volume III at 106. The report recommended that Child continue to receive individual therapy and stated that dialectical behavior therapy may also be beneficial and that such therapy can be conducted in an outpatient setting. The report concluded that, while Child experiences mental health symptoms, with the proper supports in place there is a high likelihood that she can be successful in the community without the need for hospitalization or residential placement.
[¶16] We recognize that, in some situations, residential treatment, while a comparatively restrictive disposition, is appropriate. However, in light of the evidence in the record to which DCS points, and mindful of the considerations in Ind. Code § 31-34-19-6, this is not one of those situations. DCS presented evidence that the providers who evaluated Child concluded that placement in a residential treatment facility was not necessary or that Child would likely regress in such a facility. Parents did not file an appellees' brief, and we will not undertake the burden of developing arguments on their behalf. We conclude that DCS has established prima facie error, and we reverse and remand for further proceedings.
[¶17] Reversed and remanded.
Mathias, J., and Kenworthy, J., concur.