Opinion
24A-JC-1567
11-21-2024
In the Matter of L.D. (Minor Child), Child in Need of Services v. Indiana Department of Child Services, Appellee-Petitioner and J.W. (Mother) and M.D. (Father), Appellants-Respondents
ATTORNEY FOR APPELLANT J.W. Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEY FOR APPELLANT M.D. Christopher T. Armour BBFCS Attorneys Richmond, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Natalie F. Weiss 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Wayne Superior Court The Honorable Kaarin M. Lueck, Magistrate Trial Court Cause No. 89D03-2402-JC-29
ATTORNEY FOR APPELLANT J.W.
Cara Schaefer Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana
ATTORNEY FOR APPELLANT M.D.
Christopher T. Armour
BBFCS Attorneys
Richmond, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[¶1] J.W. ("Mother") and M.D. ("Father") (collectively, "Parents") appeal the trial court's adjudication of their son L.D. ("Child") as a Child in Need of Services ("CHINS"). Parents present one issue for our review, namely, whether the trial court erred when it found that Child was a CHINS.
[¶2] We affirm.
Facts and Procedural History
[¶3] Parents have had five children together. Their two eldest children were adopted, with Parents' consent, in 2022. That same year, two of Parents' other children, R.D. and A.D., were removed from their care, and the Indiana Department of Child Services ("DCS") later filed petitions to terminate Parents' parental rights to R.D. and A.D. DCS had detained R.D. in September 2022 "due to R.D. being below weight and developmentally delayed with a possible diagnosis of Failure to Thrive." Father's App. Vol. 2, p. 52. DCS had detained A.D. "in December 2022 or January 2023 because Mother was not providing appropriate care and feeding to A.D. post-delivery at the hospital." Id.
Those petitions were still pending at the time of the fact-finding hearing in this case.
[¶4] When Child was born in February 2024, the hospital staff put Mother on "red alarm" status due to her lack of appropriate prenatal care while she was pregnant with Child and due to DCS's involvement with the Parents regarding R.D. and A.D. Tr. p. 87. Because of the red alarm status, DCS instructed hospital staff not to discharge Child without first allowing DCS to conduct an evaluation, and the staff was using extra "caution" in the care of Mother and Child. Id.
[¶5] While at the hospital post-partum, Dr. Allison Syme attempted to communicate to Mother "a recipe of information" regarding "the safe care" of Child. Id. at 86. Dr. Syme's "interaction [with Mother] was such that [Mother] was emotionally immature and frequently anticipated what [Dr. Syme] was going to say, and [Mother] wasn't listening to what [Dr. Syme] was trying to teach her." Id. Child was giving "a lot of hunger [cues] the entire time" he was in the hospital with Mother, and the attending nurses suggested to Mother that she feed him more than she was feeding him. Id. at 93. Andrea Hodson, a nurse caring for Mother and Child, had "concerns with how well [Child] was feeding" because of how often he appeared hungry by showing hunger cues. Id. at 97. Mother was not receptive to Hodson's instruction and, on one occasion, Mother gave Hodson "a little bit of push-back[.]" Id. at 98.
[¶6] Parents told Stephanie Nunez, another nurse, that they had animals in their home that were "a problem." Id. at 105. Nunez asked Mother why they did not get rid of the animals if they were a problem, but Mother responded that "she didn't think she could do that." Id.
[¶7] Prior to Child's release from the hospital, on February 8 DCS filed a petition alleging that Child was a CHINS because his physical condition was seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of Parents to supply him with necessary food, shelter, or medical care when Parents were financially able to do so or due to the failure, refusal, or inability of Parents to seek financial or other reasonable means to do so; and Child needed care, treatment, or rehabilitation that Child was not receiving and was unlikely to be provided or accepted without the coercive intervention of the Court.
[¶8] Specifically, DCS alleged:
f.) That Mother and Father have [an] extensive DCS history.
g.) That DCS has provided services that have not yet remedied the issues that were present at the time of the removal of the other children.
h.) That Mother and Father participate in services but have been unable to apply or retain the knowledge and skills to remedy the inability to parent.
i.) Dr. Syme stated she can see parents are really trying but are not listening when given advice about feeding the baby or feeding cues. Dr. Syme reported [Mother] is observed to be emotionally immature and not teachable.
j.) On February 8, 2024[, the family case manager ("FCM")] spoke with the hospital and there were concerns noted in the night shift report regarding feeding issues again with Child. Mother states she is breastfeeding but never allows anyone to be present. Child was in the nursery last night a few times for 3-4
hours at a time and Mother stated she has fed Child but the night shift nurses observed Child showing feeding cues and was overall not content/satisfied like he should have been if he was just fed. Night shift supplemented formula for Child as he was observed to be hungry.
k.) The parents are unable or unwilling to provide the Child with safe and appropriate home environment.Father's App. Vol. 2, p. 16. DCS also filed a petition for immediate detention of Child, which the trial court granted. DCS placed Child in foster care with his siblings.
[¶9] Thereafter, Parents exercised regular supervised visits with Child and attended some of Child's medical appointments. Dr. Christi Holmes was Child's pediatrician after birth. At Child's first visit with Dr. Holmes, she noted that Child was "on breast milk or pumped breast milk" and that he was having "significant difficulty sleeping . . . with a lot of gassiness and a lot of spitting up ...." Tr. p. 111. Dr. Holmes instructed Mother and Child's foster mother to feed Child formula and breast milk. Because Child continued to have difficulty with spitting up, Dr. Holmes ordered a soy-based formula for Child. When that did not help, Dr. Holmes ordered a hypoallergenic formula for Child. During one visit, when Mother was still breastfeeding Child, Dr. Holmes instructed Mother to eliminate dairy and caffeine from her diet. Dr. Holmes later described that conversation as "difficult" because Mother suggested that Child was spitting up because of his separation from her. Id. at 112-13. And, on occasion, Mother would report noncompliance with the recommended dairy ban.
[¶10] Parents were responsible for having food for Child at supervised visits, which took place either in Parents' home or "in the community[.]" Id. at 122. Some visits ended early, with Parents cutting some visits by as much as one hour. And Parents canceled some visits. During a supervised visit with Child in May, Mother attempted to feed Child the soy-based formula despite Dr. Holmes having changed Child to the hypoallergenic formula. Also in early May, Mother, anticipating a visit with Child, told the family case manager that she did not have any food for Child.
[¶11] Parents have had an ongoing problem in their home with a strong odor of cat urine. Parents had the carpets cleaned, but "the issue remains." Father's App. Vol. 2, p. 55. When Child visited with Parents in their home, Child "smelled of urine" when he was returned to his foster home. Id. In addition, Parents have struggled to pay their electric bill. They keep the house cold during the winter months to save on heating costs.
[¶12] Following a fact-finding hearing on May 15, the trial court concluded that Child was a CHINS. In doing so, the trial court entered detailed findings and concluded that DCS had met its burden by a preponderance of the evidence that Child was a CHINS pursuant to Indiana Code section 31-34-1-1. Specifically:
a. the child's mental and physical conditions are seriously endangered by Mother's and Father's inability to provide the child with necessary food, shelter, care, and supervision;
b. Mother and Father need financial assistance to access needed services; and
c. the child needs ongoing care and treatment that would not be provided without the coercive intervention of the Court.Id. at 56. This appeal ensued.
Discussion and Decision
[¶13] Parents contend that DCS failed to present sufficient evidence to demonstrate that Child is a CHINS. Our standard of review is well settled:
When reviewing a trial court's CHINS determination, we do not reweigh evidence or judge witness credibility. In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). "Instead, we consider only the evidence that supports the trial court's decision and [the] reasonable inferences drawn therefrom." Id. at 1287 (citation, brackets, and internal quotation marks omitted). When a trial court supplements a CHINS judgment with findings of fact and conclusions [of] law, we apply a two-tiered standard of review. We consider, first, "whether the evidence supports the findings" and, second, "whether the findings support the judgment." Id. (citation omitted). We will reverse a CHINS determination only if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). A decision is clearly erroneous if the record facts do not support the findings or "if it applies the wrong legal standard to properly found facts." Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997) (citation omitted).Gr.J. v. Ind. Dep't. of Child Servs. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind. 2017) (alterations in original).
[¶14] In J.B. v. Indiana Department of Child Services (In re S.D.), 2 N.E.3d 1283, 1287-88 (Ind. 2014), our Supreme Court explained the three elements required to prove that a child is a CHINS under Indiana Code Section 31-34-1-1, as alleged in this case:
Not every endangered child is a child in need of services, permitting the State's parens patriae intrusion into the ordinarily private sphere of the family. See generally In re K.D., 962 N.E.2d at 1255. Rather, a CHINS adjudication under Indiana Code section 31-34-1-1 (often called a "CHINS 1," in reference to the section number) requires 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 full, the statute provides:
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; 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.
I.C. § 31-34-1-1 (2008). That final 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." Lake Cnty. Div. of Family &Children Servs. v. Charlton, 631 N.E.2d 526, 528 (Ind.Ct.App. 1994).(Emphasis removed.)
[¶15] The CHINS statute does not require a court to wait until a tragedy occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind.Ct.App. 2009). Rather, a child is a CHINS when he or she is endangered by parental action or inaction. Id. The purpose of a CHINS adjudication is not to punish the parents, but to protect the child. In re A.I., 825 N.E.2d 798, 805 (Ind.Ct.App. 2005), trans. denied.
[¶16] Parents contend that the trial court erred in adjudicating Child to be a CHINS because there was no evidence that their actions or inactions have seriously endangered Child, that Child's needs were unmet, or that those needs are unlikely to be met without State coercion. Mother argues that the trial court's findings do not support a determination that Child's health was seriously endangered by Parents' actions or inactions. And Father challenges three of the trial court's findings as unsupported by evidence. We address the challenged findings first.
[¶17] In Finding No. 17, the trial court found that Child was given "at least six (6) supplemental feedings" between February 6 and February 9, 2024. Father's App. Vol. 2, p. 53. Father argues that there is no evidence to support that finding, and DCS agrees. Nurse Keshia Locke testified that she believed that Child was given "supplemental bottles" because of his frequent hunger cues, but she did not testify that any specific number of bottles were given. Tr. p. 93. Thus, Finding No. 17 is only partially supported by the evidence. Despite this minor error, as we explain below, DCS presented sufficient evidence to support the trial court's findings, which, in turn, support the CHINS adjudication.
[¶18] In Finding No. 55(b), the trial court found that, on one occasion in early May 2024, "Mother canceled a visit because [she] did not have food for the child." Father's App. Vol. 2, p. 55. Father argues that the evidence shows that that visit was canceled because Parents had failed to confirm the appointment in advance. FCM Shylan Whitaker testified that the visit was canceled because Parents "did not confirm [the visitation in advance] and then they had texted about not having food for the visit. And I told them there was no visit due to no confirmation." Tr. p. 142. Thus, the evidence shows that Mother, believing there was a scheduled visitation, texted the FCM to inform her that Mother did not have food for Child. We cannot say that the finding is clearly erroneous.
[¶19] In Finding No. 66, the trial court found that "Mother and Father have struggled to pay their electric bill, sometime[s] resulting in no heat in their home or only using heat when necessary." Father's App. Vol. 2, p. 55. Father argues that this finding implies that the heat in Parents' house had been disconnected or was nonfunctional, which is not true. But Whitaker testified that: "At one point [Parents] were on the verge of getting their electric disconnected due to not being able to pay that, so they, there wasn't heat. And [Mother] was only using heat as needed." Tr. p. 146. We cannot say that the finding is clearly erroneous.
[¶20] Having reviewed the findings, we next turn to Mother's argument that the trial court erred when it found and concluded that Child's health was seriously endangered by Parents. Specifically, Mother argues that the "only condition" Child has is a problem with his gastrointestinal tract which is "clearly" nobody's fault given that he is still having those issues while in foster care. Mother's Br. at 10-11. Mother maintains that she received "contradictory information" while in the hospital after Child's birth regarding how often to feed him. Id. at 11. And Mother points out that she and Child have an appropriate bond, and Child's weight was normal upon his discharge. Finally, Mother argues that "[t]here was no evidence presented . . . to show that the odor of cat urine that returned after the carpets were cleaned would be deleterious to [Child]'s health, or that the home was so cold as to be uninhabitable." Id. at 13. Thus, she maintains that DCS did not present sufficient evidence to show that Child was a CHINS.
[¶21] Mother's argument amounts to a request that we reweigh the evidence, which we will not do. Child's gastrointestinal issues are not the only issue underlying the CHINS determination. Rather, it was Mother's refusal or inability to take direction from health care providers in the hospital after Child's birth regarding how much and how often to feed him that was cause for concern, which was especially notable given that DCS had previously removed R.D. and A.D. from Parents' care due to those children's issues with weight gain and proper nutrition. Mother demonstrated an inability to properly feed Child, both in the hospital and after his release during supervised visitations. On one occasion, she brought a soy-based formula that the doctor had discontinued for Child, and, on another occasion, in anticipation of a visit with Child, Mother told the FCM that she did not have any food for Child.
[¶22] Regarding the condition of Parents' home, despite their effort to clean the carpets, they continued to smell strongly of cat urine. Mother acknowledged that the animals were "a problem," but she refused to get rid of them. Tr. at 105. Child smelled like cat urine after spending time at Parents' house. And, as for the temperature of the house, while there is no evidence as to how cold the house was when Child was present, the evidence shows that Parents struggled to pay the electric bill, which, in turn, jeopardized their ability to heat their home.
[¶23] Father likewise asks us to reweigh the evidence. He argues that he was employed and paid his bills, including his electric bill. And he points out that hospital staff testified that they would not have contacted DCS regarding Parents' care of child. But Father ignores the evidence supporting the trial court's findings and conclusions.
[¶24] As Parents acknowledge, Indiana Code section 31-34-12-5 provides:
Evidence that a prior or subsequent act or omission by a parent, guardian, or custodian injured or neglected a child is admissible in proceedings alleging that a child is a child in need of services to show the following:
(1) Intent, guilty knowledge, the absence of mistake or accident, identification, the existence of a common scheme or plan, or other similar purposes.
(2) A likelihood that the act or omission of the parent, guardian, or custodian is responsible for the child's current injury or condition.
[¶25] Here, it was Parents' neglect of R.D. and A.D. that caused DCS to get involved at the time of Child's birth. Child showed frequent hunger cues while in the hospital despite Mother's insistence that she was feeding him on an appropriate schedule. Mother was not receptive to instruction given by Dr. Syme or the nurses regarding appropriate responses to Child's feeding cues. While Child was a normal weight at the time of his discharge, Mother had not demonstrated an understanding of how to respond to his feeding cues. That evidence, combined with Parents' history of similar issues with R.D. and A.D.; the cat urine problem; and the heating insecurity in the home all support the trial court's conclusion that Child is a CHINS.
[¶26] In sum, DCS proved the "three basic elements" of this CHINS case, namely, that Parents' actions or inactions have seriously endangered Child, that Child's needs are unmet, and that those needs are unlikely to be met without State coercion. See In re S.D., 2 N.E.3d at 1287.
[¶27] Affirmed.
Brown, J., and Kenworthy, J., concur.