Opinion
Court of Appeals Case No. 21A-JC-910
10-20-2021
In the MATTER OF: I.A. (Child) Child in Need of Services, and D.A. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
Attorney for Appellant: R. Patrick Magrath, Madison, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Robert J. Henke, Deputy Attorney General, Katherine A. Cornelius, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: R. Patrick Magrath, Madison, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Robert J. Henke, Deputy Attorney General, Katherine A. Cornelius, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Judge.
Case Summary
[1] D.A. (Mother) appeals from the adjudication of her son I.A. (Child) as a child in need of services (CHINS). She contends that the Indiana Department of Child Services (DCS) failed to present sufficient evidence to support the adjudication.
Child's father (Father) admitted Child was a CHINS and, therefore, does not participate in this appeal.
[2] We affirm.
Facts & Procedural History
[3] On or about December 11, 2020, DCS received a report from Child's school alleging that the third grader had an excessive number of absences and that attempts to reach his parents had been unsuccessful. Family Case Manager (FCM) Brittany Reynolds investigated the report and, upon speaking further with the school, learned that in addition to the absences, Child was often tardy and exhausted when he was at school.
DCS was familiar with the family based on a similar substantiated claim of educational neglect during the prior school year.
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[4] FCM Reynolds initially experienced difficulty locating Mother, as the address the school had for her was no longer correct because she and Child had moved in with a friend. FCM Reynolds finally met with Mother on December 20, 2020. Mother refused to be drug screened that day and continued to refuse screens thereafter. She was hostile, avoidant, and uncooperative during the DCS assessment. DCS had concerns regarding Mother's housing instability and possible continued drug use, which had resulted in Child's removal from her care in 2017.
[5] On January 11, 2021, DCS filed the instant CHINS petition alleging educational neglect and noting Mother's housing instability, prior DCS involvement, and possible drug use. DCS also indicated, in the petition, that Child was in Mother's sole custody and that Father had limited contact with Child. At the time, Child had not been removed from Mother's care, and Mother and Child were living with Mother's nephew and his girlfriend.
[6] The trial court held an initial hearing on January 28, 2021. At the hearing, the trial court ordered Mother to submit to random drug screens. She tested positive for methamphetamine that day and positive for THC on February 25, 2021. She refused or failed to show for all other screens between the initial hearing and the factfinding hearing.
[7] At the end of January 2021, Mother took Child out of his current school and enrolled him in the Indiana Digital Learning School (Virtual School). Child missed every daily live session for about the first month. The Virtual School made multiple unsuccessful attempts to contact Mother about these missed sessions. While he did log on to complete assignments, the submissions were usually late.
[8] DCS referred Mother and Child to Jessica Wagner, a family preservation therapist, on January 19, 2021. Mother did not initially respond to Wagner's contacts, but they eventually met on January 26. The services provided by Wagner include trauma therapy for Child and assisting Mother with housing and financial stability and being an educational support for Child. Except for a no-show and some cancellations, Wagner's sessions with Mother and Child were progressing well. Further, Mother obtained employment on or about February 11, 2021, and was working thirty to four hours per week.
[9] The factfinding hearing was held on March 5, 2021. At the beginning of the hearing, Father admitted that Child was a CHINS. He also indicated that he had another open CHINS case with regard to another child (Child's younger half-sibling) and that he was actively participating in substance abuse services, fatherhood engagement, random drug screens, and therapy. Father requested that if Child's in-home CHINS were to result in a removal from Mother's care, that Child be placed with him.
[10] After hearing testimony from Child's educators, Wagner, FCM Reynolds, FCM Jayme Brashier, and Mother, the trial court took the matter under advisement. Thereafter, on March 17, 2021, the trial court issued an order adjudicating Child to be a CHINS (the CHINS Order). In support, the court made the following specific findings of fact:
1. Father admits that Child is a CHINS....
2. The Court hears evidence that [Mother] has taken only 2 drug screens since being ordered to submit to random screens upon request on January 28, 2021. Mother has failed both drug screens, testing positive for amphetamine and methamphetamine on 1/28/21 and positive for THC on 2/25/21.
3. Mother refused several times to submit to screens during the assessment. Mother refused to screen on 2/19/21. She failed to respond to the Redwood screener on 3/1/21, 2/26/21, 2/24/21, 2/19/21, 2/17/21, 2/11/21 and 2/8/21.
4. At the times Mother refused or failed to show for each of these screens, she was under an Order [to submit to such screens].
5. The Court draws a negative inference from Mother's failures and refusals to screen that the results on the dates listed herein would have returned with positive results.
6. The Court takes judicial notice of Cause 39D01-2011-F6-01276, wherein Mother has pending felony level drug charges.
7. Child's school performance has been negatively impacted by Mother's failure to ensure that Child attends school as required.
8. Although Child's records from the Virtual School appear to reflect perfect attendance, students are given credit for attendance on any day that they log in to do assignments ... regardless of whether or not they are attending the daily live sessions ....
9. The live sessions are a critical element of Child's curriculum....
10. Child has missed multiple live sessions and the school's attempts to communicate with Mother to ensure his attendance (through calls, text messages and emails) routinely go unanswered.
11. Child's absences at live sessions have had a noticeable negative impact upon his performance. He currently has 8 overdue assignments.
12. Child's records from Anderson Elementary reflect that between enrollment in August of 2020 and his withdrawal on January 28, 2021, Child had 29 unexcused absences, 17 excused absences, and 21 tardies. When Child was present, he was often exhausted to the point that his teacher would request permission for him to sleep in class. If Child's teacher had not allowed Child to make up missed assignments and spent significant time helping him do so, Child would not have passed his classes.
13. Jessica Wagner is currently providing services to the family through a DCS referral. While sessions go well with Child and Mother when they occur, Mother continues to cancel or no-show scheduled appointments. Mother often fails or refuses to communicate with Ms. Wagner in a timely manner.
14. Ms. Wagner is working to address issues of prior trauma with Child and with housing and financial stability issues with Mother. In Ms. Wagner's professional opinion, the family is in need of her continued services.
15. Mother believes that both she and Child could benefit from counseling services, but indicated that she can obtain those services on her own. When questioned about Child's need for counseling, Mother alleges that he needs it to resolve his trauma from a prior DCS removal in 2017. But Mother has not sought services on her own volition, either for herself or for Child, since that time.
16. DCS providers and case workers consistently have problems getting Mother to communicate with them, and Child has been negatively impacted by Mother's lack of communication. Whether it was DCS employees, service providers, or educators, the record is clear that attempts to reach Mother most often go unanswered.
17. .... The Court does not credit Mother's testimony that she simply misses repeated communications from DCS, service providers, and educators. Instead, it is clear to the Court that Mother chooses not to respond or communicate with her providers.
18. The Court takes judicial notice of ... a previously dismissed CHINS filed in this Court alleging that Child was a CHINS during the prior (2019-2020) school year due to educational neglect. Mother testified that DCS has been involved "every year since they took Child" for concerns over educational neglect.
19. The Court takes judicial notice of Cause Number 39C01-1708-JC-00112 (the removal to which Mother referred). Child was adjudicated a CHINS in that matter due to concerns for parental drug use and housing instability.
20. Based upon the foregoing, there exists longstanding issues with parental drug use, housing instability, and educational neglect which are negatively impacting Child and preventing him from reaching his full potential.
21. The coercive intervention of the Court is necessary due to Mother's failure and refusal to cooperate with the services that are being offered to help remedy these concerns. As such, the Court hereby adjudicates Child to be a CHINS.
Appellant's Appendix Vol. 2 at 151-54 (cleaned up).
[11] At the dispositional hearing on April 15, 2021, FCM Brashier requested that the Court change Child's placement from Mother to Father due to recent positive drug screens and conversations with the director of compliance at the Virtual School that Child attends. Specifically, Mother had tested positive for methamphetamine, among other things, on March 24, March 30, April 1, and April 8, and Child had continued to miss the school's live sessions and have overdue assignments. Although the Virtual School continued to have difficulty reaching Mother when needed, Father had been returning their calls. Finally, the CASA expressed concern that she had limited access to Child since being appointed in January, and she noted, "I have tried three times in the last week, and [Mother] never responded to text messages." Transcript at 68.
[12] At the conclusion of the hearing, the trial court adopted DCS's predispositional recommendations and parent participation plan, entered the dispositional order, and ordered Child to be removed from Mother's home and placed with Father due to her continued educational neglect and drug use.
[13] Mother now appeals, challenging the sufficiency of the evidence supporting the CHINS Order. Additional information will be provided as needed below.
Discussion & Decision
[14] A CHINS proceeding is a civil action that requires DCS to prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. In re K.D. , 962 N.E.2d 1249, 1253 (Ind. 2012). On review, we neither reweigh the evidence nor judge the credibility of the witnesses and will consider only the evidence and reasonable inferences that support the trial court's decision. Id. We will reverse only upon a showing that the decision of the trial court was clearly erroneous. Id. Further, in family law matters, we generally grant latitude and deference to trial courts in recognition of the trial court's unique ability to see the witnesses, observe their demeanor, and scrutinize their testimony. In re A.M. , 121 N.E.3d 556, 561-62 (Ind. Ct. App. 2019), trans. denied.
[15] There are three elements DCS must prove for a child to be adjudicated 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.
Id. (footnote omitted); see also Ind. Code § 31-34-1-1 (CHINS statute applied in this case where "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").
[16] It is well established that the purpose of a CHINS adjudication is to protect the children, not punish the parents. K.D. , 962 N.E.2d at 1255. The focus of a CHINS proceeding is on "the best interests of the child, rather than guilt or innocence as in a criminal proceeding." Id. (quoting In re N.E. , 919 N.E.2d 102, 106 (Ind. 2010) ). Further, when determining CHINS status, particularly the coercive intervention element, courts should consider the family's condition not just when the case was filed, but also when it is heard so as to avoid punishing parents for past mistakes when they have already corrected them. In re D.J. , 68 N.E.3d 574, 580-81 (Ind. 2017). This element "guards against unwarranted State interference in family life, reserving that intrusion for families ‘where parents lack the ability to provide for their children,’ not merely where they ‘encounter difficulty in meeting a child's needs.’ " In re S.D. , 2 N.E.3d 1283, 1287 (Ind. 2014) (quoting Lake Cnty. Div. of Family & Children Servs. v. Charlton , 631 N.E.2d 526, 528 (Ind. Ct. App. 1994) ).
[17] In this case, while Mother does not challenge any of the trial court's specific findings of fact, she contends that the CHINS Order was not supported by sufficient evidence. Mother claims that she was "actively attempting to address" Child's educational needs, employed and providing insurance coverage and suitable housing for Child, and "fully participating in therapeutic services with the stated intention of continuing with said services." Appellant's Brief at 4. Additionally, with regard to her drug use, Mother asserts that no evidence was presented "demonstrat[ing] any connection between Child's current needs and Mother's drug screens" and that any presumed endangerment was "mere speculation." Id. at 14.
[18] We reject Mother's invitation to reweigh the evidence. The trial court's findings, which are amply supported by the evidence and set out in detail above, establish that Mother was avoiding DCS providers/caseworkers and Child's educators at nearly every turn. And her claim that she was actively addressing Child's educational needs is specious. Mother has a long history of neglecting Child's education and, relative to this instance, the record shows that Child missed school forty-six times and was tardy twenty-one times in less than six months between August 2020 and January 2021. When Child did make it to his third-grade class, he was often exhausted and falling asleep. Mother switched Child to the Virtual School on January 28, 2021, but she still failed to ensure that Child attended the daily live sessions, which were critical to his education, and she remained generally unresponsive to educators. Further, it is reasonable to infer a connection between Mother's use of methamphetamine, as well as other illegal drugs, and her educational neglect of Child, which has negatively impacted his learning.
[19] At the time of the factfinding hearing, Mother was employed and had suitable housing for herself and Child with her nephew's family. She was also generally cooperative with Wagner, receiving family preservation therapy for herself and Child, which Wagner opined needed to continue. This brief period of progress is commendable, but it is not proof that Mother will meet Child's needs without the coercive intervention of the court, as she remained at the time otherwise noncompliant with DCS and Child's educators and was continuing to use methamphetamine and defy the court-ordered drug screens. Under the circumstances, the trial court did not err in determining by a preponderance of the evidence that Child is, once again, a CHINS.
[20] Judgment affirmed.
Bradford, C.J. and Robb, J., concur.