Opinion
24A-JC-1762
12-18-2024
In the Matter of: Jo.K., Jos.K., and M.S. (Minor Children), Children in Need of Services v. Indiana Department of Child Services, Appellee-Petitioner and J.K. (Mother), Appellant-Respondent
ATTORNEY FOR APPELLANT ADAM M. LARIMER LAWRENCE COUNTY PUBLIC DEFENDER AGENCY BEDFORD, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL INDIANAPOLIS, INDIANA KATHERINE A. CORNELIUS 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lawrence Circuit Court The Honorable Nathan G. Nikirk, Judge The Honorable Anah H. Gouty, Juvenile Referee Trial Court Cause No. 47C01-2403-JC-110, 47C01-2403-JC-111, 47C01-2403-JC-112
ATTORNEY FOR APPELLANT ADAM M. LARIMER LAWRENCE COUNTY PUBLIC DEFENDER AGENCY BEDFORD, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL INDIANAPOLIS, INDIANA KATHERINE A. CORNELIUS DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
May, Judge
[¶1] J.K. ("Mother") appeals the adjudication of her children, M.S., Jo.K. and Jos.K (collectively, "Children") as Children in Need of Services ("CHINS"). She presents multiple issues for our review which we restate as:
1. Whether the evidence supports the findings regarding Mother's lack of progress to ensure Children's attendance at school; and
2. Whether the trial court's findings support its conclusion that Children's physical or mental health was seriously endangered or seriously impaired by Mother's inability or unwillingness to ensure their school attendance such that coercive intervention of the trial court was needed.
We affirm.
Facts and Procedural History
[¶2] Mother has three children who are the subject of these proceedings: M.S., born October 8, 2010; Jo.K., born January 11, 2013; and Jos.K., born January 7, 2014. Children have an older sibling, C.C., who is not part of the CHINS adjudications before us. C.C. and Children live with Mother.
M.S. is the only child with a father named as part of the CHINS petition. He does not participate in this appeal.
[¶3] On November 21, 2017, the Department of Child Services ("DCS") responded to a report alleging neglect because M.S. had missed sixteen days of school. On January 10, 2018, DCS learned M.S. had missed an additional ten days, for a total of twenty-six days. DCS also received a report that M.S. was "failing Language Arts and had a D in Reading and Math." (Ex. Vol. I at 24.) DCS worked with Mother informally to develop a safety plan and Mother was "advised if absences continue then DCS could get involved" formally. (Id.) On January 30, 2018, DCS closed the assessment and recorded the report of neglect as unsubstantiated.
[¶4] On November 14, 2019, DCS received a report alleging neglect because Jo.K. had a total of sixteen school absences, with ten unexcused. The school contacted Mother regarding the absences, and Mother did not respond. On December 4, 2019, DCS received updated attendance records for Jo.K., who by that time had accrued seventeen unexcused absences. Jo.K. was also failing math and reading. DCS, at Mother's request, gave Mother "a Community Partners referral" to help address any issues Mother was having with respect to ensuring Children's attendance at school. (Id.) On December 19, 2019, DCS closed the assessment and recorded the report of neglect as unsubstantiated.
[¶5] On January 3, 2023, DCS received a report alleging neglect because Jo.K. had eighteen unexcused school absences and was performing below grade level. Mother reported to DCS that Jo.K. had autism and was "refusing to attend school due to anxiety and attachment issues" and she "expressed difficulty with making [Jo.K.] attend school when he exhibits refusal to do so." (Id.) Mother agreed to remain in contact with Jo.K.'s school regarding attendance but refused a second referral to Community Partners. On February 13, 2023, DCS closed the assessment and recorded the claim of neglect as unsubstantiated.
[¶6] On April 17, 2023, DCS received a report alleging neglect because M.S. had thirty-four unexcused absences during the 2022-23 school year. As part of its investigation, DCS obtained school attendance records for M.S., Jo.K., and Jos.K. M.S. had missed thirty-five days, Jo.K. had missed twenty-four days, and Jos.K. had missed four days. Mother told DCS that M.S.'s absences were due to hospitalizations for a back injury. Mother signed a hospital release for DCS to confirm M.S.'s hospitalization and treatment dates, but the hospital reported they had no dates of treatment on file. Mother produced documentation for M.S.'s treatment for April 19, 2023, and two subsequent appointments, but DCS was unable to confirm the dates of those treatments. At some point after April 19, 2023, DCS closed the assessment as unsubstantiated.
[¶7] On September 28, 2023, DCS received a report alleging neglect because of Children's excessive school absences. Upon investigation, DCS discovered M.S. had twenty unexcused absences; Jo.K. had eighteen unexcused absences and had been tardy three times; and Jos.K. had fourteen unexcused absences and had been tardy four times. Mother refused to communicate with DCS. DCS made contact with the school attended by Jo.K. and Jos.K. and learned they had not had excessive absences since the school's report and they had been given an opportunity to make up missed work. DCS closed the case as unsubstantiated.
[¶8] On November 7, 2023, DCS received a report alleging neglect because of Children's excessive school absences. Around that date, Family Case Manager ("FCM") Tiffany Harkness visited the family's home. The home "met DCS minimal standards" however FCM Harkness noted it "was cluttered with trash and debris" and the refrigerator contained expired food. (Id. at 21.) DCS received an attendance report from the Children's schools. For that current school year, M.S. had thirty-two absences, Jo.K. had eighteen absences, and Jos.K. had twenty-one absences. M.S. and Jo.K. both had low grades. Mother told FCM Harkness that Children, who were thirteen, ten, and nine years old, were responsible for getting themselves up and ready for school because Mother worked in the morning at a local gas station. Maternal grandmother lived in the apartment below Mother and Children and would sometimes ensure Children woke up, but maternal grandmother could not stay with Children in the morning due to other responsibilities.
[¶9] When DCS visited the home on December 6, 2023, FCM Harkness observed trash and spoiled food throughout the house and when she walked on the carpet "the debris crunched under [her] feet." (Id. at 22.) In addition, FCM Harkness "swatted flies away from [her] face" when speaking with Mother and "[w]hat appeared to be dead fruit flies[] lined the bottom of the refrigerator." (Id.) Mother agreed to enter into an informal adjustment to address the school attendance and home conditions. The informal adjustment focused on budgeting, seeking financial assistance, food resourcing, improving Children's attendance and grades, getting Children into a routine, and implementing age-appropriate chores for Children.
[¶10] After signing the informal adjustment, Mother did not stay in contact with DCS. She also did not respond to correspondence from Children's schools regarding their attendance and would not speak to the tutor working with M.S. On March 18, 2024, DCS filed a petition alleging Children were CHINS because of "[e]ducational neglect[.]" (App. Vol. II at 45.) The petition also noted FCM Harkness's observations concerning the home conditions. Children remained in Mother's home and have stayed there throughout these proceedings.
The petition also alleged Children's older sibling, C.C., was a CHINS, but Mother does not appeal C.C.'s adjudication as a CHINS.
[¶11] The trial court held an initial hearing on March 25, 2024, during which Mother denied Children were CHINS. On May 3, 2024, the trial court held a fact- finding hearing on the CHINS petitions. As of the fact-finding hearing, M.S. had forty-two unexcused absences, Jo.K. had forty unexcused absences, and Jos.K. had thirty-three unexcused absences and a seven-day suspension for "dipping his hands in the toilet and wiping his hands on a peer's face[.]" (Id. at 55.) Children all had poor grades. However, the principal at Jo.K. and Jos.K.'s school reported their attendance had improved prior to the CHINS fact finding hearing and the vice principal of M.S.'s school noted M.S. had not missed school since Spring Break.
[¶12] Regarding the condition of the home, service provider Brandon Price testified he visited the family home and helped clean the house. He removed twelve bags of trash from the house. Thereafter, homebased service provider Amanda Colvin with Ireland Home Based Services visited the home and reported the conditions improved during March. Colvin was able to secure assistance to help Mother pay an overdue utility bill and she worked with Mother regarding home management and parenting skills.
[¶13] Mother testified she was aware of Children's attendance issues but relied upon maternal grandmother to wake Children and get them to school. Mother would not sign a release for DCS to speak to maternal grandmother. Regarding home conditions, Mother told the trial court that the home was not clean from November 2023 to March 2024 because Children would not help her keep the house clean. Mother testified she only agreed to an informal adjustment because DCS was "going to go through the court system if [she] didn't." (Tr. Vol. II at 58.) She stated she did not want services because she did not want DCS involved with her family. She testified she had the attendance issue "under control" because she changed her work shifts to nights and maternal grandmother helped her get Children to school when Mother had to work in the morning. (Id. at 61.)
[¶14] On May 23, 2024, the trial court issued its order adjudicating Children as CHINS based on Mother's inability to ensure Children's school attendance, which resulted in Children's poor school performance. The trial court also concluded the family would not receive the required services absent the coercive intervention of the trial court. On June 17, 2024, the trial court held its dispositional hearing. On June 20, 2024, the trial court issued a dispositional order that required Mother to, among other things, regularly contact the FCM; sign releases to monitor compliance with the trial court's order; maintain suitable and safe housing; maintain a legal source of income; assist in the formulation and implementation of a protection plan; ensure Children are properly cared for and supervised; not consume illegal substances or alcohol; obey the law; complete an assessment with a family preservation services provider and follow all recommendations; and enroll in all recommended programs within thirty days.
Discussion and Decision
[¶15] Mother challenges the trial court's determination that Children are CHINS. She contends the findings regarding the part DCS played in the improvement of the Children's attendance are not supported by the evidence and the findings do not support the trial court's conclusions that Children were seriously endangered or seriously impaired by Mother's inability or unwillingness to ensure their school attendance such that the coercive intervention of the trial court was necessary. Because a CHINS proceeding is a civil action, DCS must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. Matter of N.E., 228 N.E.3d 457, 475 (Ind.Ct.App. 2024). DCS alleged Child was a CHINS pursuant to Indiana Code section 31-34-1-1, which states:
A child is a child in need of services if before the child becomes eighteen (18) years of age:
(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:
(A) when the parent, guardian, or custodian is financially able to do so; or
(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; 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.
[¶16] A CHINS adjudication focuses on the needs and condition of the child, rather than the culpability of the parent. N.E., 228 N.E.3d at 476. The purpose of a CHINS adjudication is not to punish the parent but to provide proper services for the benefit of the child. Id. at 475. A CHINS adjudication is reserved for situations "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)).
While we acknowledge 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. Standing alone, a CHINS adjudication does not establish culpability on the part of a particular parent. Only when the State moves to terminate a particular parent's rights does an allegation of fault attach. We have previously made it clear that CHINS proceedings are "distinct from" involuntary termination proceedings. The termination of the parent-child relationship is not merely a continuing stage of the CHINS proceeding. In fact, a CHINS intervention in no way challenges the general competency of a parent to continue a relationship with the child.Matter of To.R., 177 N.E.3d 478, 485 (Ind.Ct.App. 2021) (quoting In re N.E., 919 N.E.2d 102, 105 (Ind. 2010)), trans. denied.
[¶17] When a trial court enters findings of fact and conclusions of law in a CHINS decision, we apply a two-tiered standard of review. In re Des. B., 2 N.E.3d 828, 836 (Ind.Ct.App. 2014). We consider first whether the evidence supports the findings and then whether the findings support the judgment. Id. We may not set aside the findings or judgment unless they are clearly erroneous. Id. Findings are clearly erroneous when the record contains no facts to support them either directly or by inference, and a judgment is clearly erroneous if it relies on an incorrect legal standard. Id. We give due regard to the trial court's ability to assess witness credibility and do not reweigh the evidence; we instead consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Id. We defer substantially to findings of fact but not to conclusions of law. Id. "We accept unchallenged findings as true." Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind.Ct.App. 2019)).
1. Challenged Findings
[¶18] Mother argues five of the trial court's findings are not supported by the evidence. These findings are related to the conditions that existed at the time of the fact-finding hearing and state, in relevant part:
56. The services provided through the [Informal Adjustment], or this open case, have improved the home conditions and [Children's] attendance at school.
58. Mother has recently ensured [Children] are attending school more regularly and their attendance "has improved," but this was not defined by the witnesses.
63. While the Court recognizes an improvement from late March to May 3, 2024, approximately five or six weeks, [Children's] attendance did not improve until DCS filed a petition alleging [Children] to be [CHINS]. Initially, Mother was avoidant of not only school contact about the attendance issue, but also DCS contact and service provider contact. It took weeks to get Mother to respond and help.
67. Any improvements made in education and home conditions were due to the help of service providers and it is in the best interest of [Children] that Mother and [Children] continue to receive these services to provide education, care, and other necessities.(App. Vol. II at 59-60.) Mother contends that these findings ignore her efforts to ensure Children's attendance at school. She directs us to her testimony regarding her plan for Children's attendance and the improved attendance in the five or six weeks between when DCS filed its CHINS petitions and the factfinding hearing. She states, "[t]he progress made was attributable not to the service providers, but to [Mother] and [Children][.]" (Mother's Br. at 11-12.)
[¶19] However, while Mother may believe the progress was attributable to her own efforts, DCS presented evidence that Children's school attendance and the family's home conditions only improved when they received assistance from service providers. Price testified the home conditions did not improve until he helped clean the home and removed approximately twelve bags of trash. While Mother testified she changed her work schedule so she was home to help Children get to school, by the time of the fact-finding hearing she was already having difficulty maintaining a night shift position because she was responsible for coverage when another employee quit or would be absent. DCS service providers worked with M.S. to improve her school performance, and Jo.K. and Jos.K.'s school had contacted Mother regarding their behavioral issues. Mother's characterization of the evidence is an invitation for us to reweigh the evidence, which we cannot do. See In re Des. B., 2 N.E.3d at 836 (stating standard of review). The evidence favorable to the judgment supports the trial court's findings.
2. Trial Court's Conclusions
[¶20] Mother also argues the trial court's findings do not support its conclusion that Children's physical or mental condition was seriously impaired or endangered by her inability or refusal to ensure they attended school because the conditions that prompted DCS's filing of the CHINS petition did not exist at the time of the fact-finding hearing. "A CHINS finding should consider the family's condition not just when the case was filed, but also when it is heard." S.D., 2 N.E.3d at 1290.
[¶21] In its order, the trial court outlined the family's historical interactions with DCS regarding school attendance, which date back to 2017. Regarding the situation at the time of the fact-finding hearing, the trial court found:
30. [M.S.'s] grades currently vary from passing to some failing courses. [M.S.'s] attendance has improved since after [sic] March 26, 2024 (the school's spring break) and after the school's family engagement specialist met with Mother at her place of employment.
32. Mother has quit working the closing shift at Casey's [gas station] and is working the morning shift and this has helped Mother have time to clean the home and keep it clean while [Children] are at school. Nevertheless, Mother's employer just recently lost another employee and as a result, Mother is called into work to cover many shifts.
33. Since the [Informal Adjustment] has been initiated Ireland Home Based Services has provided financial assistance to help Mother pay a utility bill.
34. Mother has been utilizing food pantries to subsidize the food in her home.
47. [Service Provider] Colvin has seen an improvement in the home conditions and she noticed this on March 22, 2024. The minor children are all helping keep the home conditions improved. Colvin has observed Mother doing dishes. Also the family has diminished the issues with mice in the home.
49. Family Case Manager, Debra Kerr (FCM Kerr) acts as the permanency case worker assigned to this family. FCM Kerr began working with the family in January 2024.
50. FCM Kerr had trouble engaging Mother initially with services. FCM Kerr observed progress since late March 2024.
64. Mother's inability to ensure [Children] attend school has been an issue documented for years with the schools.
66.... If the Court declines to find [Children] to be [CHINS], the Court has little assurance [Children] will attend school regularly for the 2024-25 school year.
67. Any improvements made in education and home conditions were due to the help of service providers and it is in the best interest of [Children] that Mother and [Children] continue to receive these services to provide education, care, and other necessities.(App. Vol. II at 57-60.) Based thereon, the trial court concluded Children's physical or mental conditions were seriously impaired or endangered "as a result of the inability and neglect of [Mother] to supply them with the necessary needs, care, and appropriate education." (Id. at 61.) Additionally, the trial court concluded that it was unlikely Children would receive the care needed to remedy the attendance issue without coercive intervention of the trial court.
[¶22] As she did in her challenge to certain findings, Mother contends Children are not seriously endangered or seriously impaired by her inability or refusal to ensure their school attendance because Children regularly attended school from the time DCS filed the CHINS petition until the fact-finding hearing five weeks later. However, Mother's argument ignores her historical inability or refusal to ensure Children's attendance at school dating back to 2017. Over that time, Children regularly had poor school performance until M.S. started receiving intervention from a service provider.
[¶23] Additionally, Mother took a long time to respond to service providers to start services during the informal adjustment period and seemed to only take the matter seriously after DCS filed its CHINS petition, which suggests the trial court must intervene to ensure Mother gets Children to school on a regular basis. While Mother's progress in putting plans in place to help Children attend school are admirable, one month of doing so does not erase the fact that DCS has been involved with the family for almost seven years to address school attendance. Based thereon, we conclude the trial court's findings support its conclusion that Mother's inability or refusal to ensure Children attended school seriously endangered or impaired Children and the situation would not improve without the coercive intervention of the trial court. See, e.g., Matter of N.E., 228 N.E.3d at 466 (CHINS adjudication affirmed because findings supported the conclusions that child seriously endangered and needs unmet and coercive intervention of the court was required to ensure the family received services to address the issues that prompted the CHINS petition, even though parents had participated in visitation and some homebased services).
Mother contends the trial court erred when it used the "best interests of the child" standard when adjudicating Children as CHINS. Specifically, in its conclusion, the trial court stated, in relevant part, "it is in the best interest of [Children] that Mother and [Children] continue to receive these services to provide education, care, and other necessities." (App. Vol. II at 60.) Mother contends the use of that standard is appropriate only when determining custody matters pursuant to Indiana Code section 31-17-2-8, and the trial court's failure to use "an explicit, factor-driven analysis" was an error. Additionally, she contends the trial court's failure to conduct the factor-driven analysis put a lower burden on DCS to prove Children were CHINS. While "best interests" is not a factor enumerated as a requirement for a CHINS adjudication under Indiana Code section 31-34-1-1, our Indiana Supreme Court has long held that the focus of a CHINS adjudication "is on the best interests of the child and whether the child needs help that the parent will not be willing or able to provide." In re N.E., 919 N.E.2d at 105. Moreover, the trial court concluded that Mother was unwilling or unable to ensure Children attended school and that the coercive intervention of the trial court was required for her to do so. Thus, the court determined that Children were CHINS based on the factors set forth in Indiana Code section 31-34-1-1, which is all that is required. Accordingly, the trial court's statement regarding Child's best interests in superfluous and not a basis for reversal. See, e.g., Lasater v. Lasater, 809 N.E.2d 809 N.E.2d 380, 397 (Ind.Ct.App. 2004) ("To the extent that the judgment is based on erroneous findings, those findings are superfluous and are not fatal to the judgment if the remaining valid findings and conclusions support the judgment.").
Conclusion
[¶24] The evidence before the trial court supported its findings and those findings supported its conclusion that Children were seriously endangered or seriously impaired by Mother's inability or unwillingness to ensure they attended school such that the coercive intervention of the trial court was needed. Accordingly, we affirm.
Tavitas, J., and DeBoer, J., concur.