Opinion
24A-JC-340
07-03-2024
In the Matter of: C.P., P.P., T.P., Z.P. and N.P. (Minor Children), v. Indiana Department of Child Services, Appellee-Petitioner And N.P. (Mother), Appellant-Respondent
Attorney for Appellant Kurtis G. Fouts Fouts Law Office Delphi, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Kathrine 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Cass Circuit Court The Honorable Stephen R. Kitts, Judge Trial Court Cause Nos. 09C01-2309-JC-45, 09C01-2309-JC-46, 09C01-2309-JC-47, 09C01-2309-JC-48, 09C01-2309-JC-49
Attorney for Appellant Kurtis G. Fouts Fouts Law Office Delphi, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
Kathrine A. Cornelius Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Respondent, N.P. (Mother), appeals the trial court's adjudication of her minor children, C.P., P.P., T.P., Z.P., and N.P. (collectively, Children), as children in need of services (CHINS).
[¶2] We affirm.
ISSUES
[¶3] Mother presents this court with two issues on appeal, which we restate as:
(1) Whether certain findings are supported by the evidence; and
(2) Whether the trial court's adjudication of Children as CHINS is clearly erroneous.
FACTS AND PROCEDURAL HISTORY
[¶4] Mother is the biological parent of Z.P., born on December 29, 2012, T.P., born on July 21, 2015, N.P., born on January 17, 2017, C.P., born on July 20, 2018, and P.P., born on July 30, 2019. E.P. is the biological father (Father) of P.P., T.P., and C.P., while T.B. is the biological father of Z.P. and N.P. Sometime in early September 2023, the Department of Child Services (DCS) responded to a request for immediate assistance from law enforcement after Father had been found throwing rocks at passing cars with Children present. Once there, DCS's family case manager (FCM) observed that "[C]hildren had marks and wounds on their body. They [] were partially clothed, some of the clothing they did have on was dirty. A couple of the [C]hildren didn't have any shoes on, they had been playing outside." (Transcript p. 10). Mother informed FCM that she "had gotten in a bind the day prior and had left [C]hildren with [Father]." (Tr. p. 11). When in care of Father, Children had been shot with a BB gun. Father was arrested by law enforcement, was charged with this incident, and has been in jail during these proceedings.
Neither biological father participates in this appeal.
[¶5] During the initial visit to Mother's house, FCM put a safety plan in place and completed a home assessment. FCM noticed that the residence was "a little bit messy. There was, you know, some painting on the walls and some things displaced. There were working utilities. [] [T]here was some food in the home and there was running water." (Tr. p. 12.) "The children were dirty, they were running around the house, [] they [] had marks on them, different cuts, wounds, bruises, in multiple places on their bodies." (Tr. p. 12). C.P., who had a fresh wound on his chest, disclosed that Father had "shot him with a BB gun and then popped out" the projectile. (Tr. p. 13). P.P. "had the wound on his head, where he had said that [Father] had shot him with the gun." (Tr. p. 13). P.P. also "had a burn on his lip that he said he had got[ten] from a cigarette lighter." (Tr. p. 13). N.P. had burns on her finger and on her knee. N.P. told FCM that the Children had "started a fire, and they were playing with plastic, and she went to put the plastic out." (Tr. p. 13). N.P. had other open wounds on her body as well. Although requested by DCS, Mother did not take Children for a physical examination.
[¶6] Initially, FCM visited regularly with Mother. Mother was cooperative in the beginning; however, Mother became combative when DCS attempted to obtain the footage of the BB gun incident that had been captured on the security cameras around the house. Mother had a shaky voice, and sweaty, shaky hands. Mother informed DCS that she believed Father had an untreated mental illness and admitted that the BB gun, with ammunition, was kept unsecured in the house. Mother's cooperation with DCS diminished over time during the assessment period.
[¶7] As part of the assessment, FCM learned of several incidents in the previous ten years which had required DCS's involvement. One prior case involved Mother leaving Children unsupervised in the car at a Walmart parking lot. In another incident, C.P. was bitten on the face by a dog for which no medical treatment was sought. There were a "number of assessments of lack of supervision" opened "recently in 2023" and Children had been removed from Mother's care by DCS on three previous occasions. (Tr. p. 14). FCM noted that during these ten previous years, "we've got a lot of drug history, we've had a lot of failed treatments[.]" (Tr. p 15).
[¶8] On September 18, 2023, DCS filed its verified petition, alleging Children to be CHINS because Mother had failed to provide Children with necessary medical care, education, or supervision. The petition also alleged that Father had shot Children with a BB gun, resulting in injuries. Initially, Children remained in the home. At this time, Mother agreed to a safety plan to ensure Children's school attendance but then failed to follow the procedure to safely get Children to school. Instead, Mother chose to stack Children onto a riding lawn mower and drive them to school on the mower. On September 27, 2023, the trial court ordered Children removed from the home. Since the initial hearing and the preliminary orders set by the trial court, FCM became concerned about Mother's lack of compliance with the safety plan, her failure to accept responsibility for Children's situation, her failure to attend visitation, and her refusal to submit to any drug screens.
[¶9] On January 3, 2024, the trial court heard evidence on DCS's petition, after which it adjudicated Children to be CHINS. The trial court found it to be "in the best interests of [C]hildren to be removed from the home environment and remaining in the home would be contrary to the welfare of [C]hildren because: of an inability, refusal or neglect to provide shelter, care, and/or supervision at the present time and the [C]hildren need protection that cannot be provided in the home." (Appellant's App. Vol. II, pp. 29, 64, 97, 130, 162). The trial court also confirmed that "[c]oercive intervention by the court is necessary to ensure the health, safety and welfare of [C]hildren." (Appellant's App. Vol. II, pp. 28, 63, 96, 129, 161). On January 17, 2024, the trial court entered dispositional orders aimed towards reunifying Mother with Children.
[¶10] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[¶11] When reviewing a CHINS determination, we neither reweigh the evidence nor judge the credibility of witnesses. In re D.J., 68 N.E.3d 574, 577-78 (Ind. 2017). Rather, we consider only the evidence supporting the court's decision and the reasonable inferences drawn therefrom. Id. at 578. Where, as here, the court supplemented its CHINS determination with findings of fact and conclusions of law, we undertake a two-step process. Id. We first consider whether the evidence supports the court's findings and, second, whether the findings support the ultimate decision. Id. Reversal of a CHINS determination is warranted if the court's decision was clearly erroneous. Id. "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." Id. (cleaned up).
II. Findings
[¶12] As an initial matter, Mother challenges certain findings made by the trial court in its Order as being unsupported by the evidence presented at the hearing. Mother's challenge is divided into two sets of fact groupings. First, Mother contends that no evidence was presented for the specific dates of certain events in Findings 12, 13, 16, 17, 18, and 19. We agree with Mother that the record is woefully short on dates and DCS failed to establish any dates for incidents during the hearing. Although very generalized timeframes were provided, the only exact date witnesses testified to was September 27, 2023, the day Children were removed from Mother's care. In fact, the only place in the record where the contested dates can be found is in DCS's allegations included in its verified petition. As such, DCS failed to present sufficient evidence during the proceeding to establish the dates included in Findings 12, 13, 16, 17, 18, and 19.
[¶13] A second set of contested findings pertains to Father's actions at the time law enforcement was called to intervene after receiving a report that Father was throwing rocks at passing cars. Again-and conceded by DCS on appeal- although the facts about Father's drug use and his attempt to set the house on fire were included in DCS's petition, they were not established during the proceeding before the trial court and therefore are unsupported by the evidence.
III. Sufficiency of the Evidence
[¶14] Next, we need to determine whether the findings that are uncontested and supported by the evidence are sufficient to establish the trial court's CHINS adjudication. See In re D.J., 68 N.E.3d at 578. A CHINS proceeding is civil in nature, so 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). "'Not every endangered child is a child in need of services,' and not every endangered child needs 'the State's parens patriae intrusion into the ordinarily private sphere of the family.'" In re D.J., 68 N.E.3d at 580 (quoting In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014)).
[¶15] There are three basic elements DCS must prove for a juvenile court to adjudicate a child as a CHINS: that the child is under eighteen years of age; one or more of the statutory circumstances outlined in Indiana Code sections 31-34-1-1 through 11 exists; and the care, treatment, or rehabilitation required to address those circumstances is unlikely to be provided or accepted without the coercive intervention of the court. Matter of K.Y., 145 N.E.3d 854, 860 (Ind.Ct.App. 2020) (citing N.E., 919 N.E.2d at 105), trans. denied. In this case, DCS alleged that Children were CHINS pursuant to Indiana Code section 31-34-1-1. To meet its burden under Indiana Code section 31-34-1-1, DCS was required to prove that Children were under the age of eighteen and that:
(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 coercive intervention of the court.I.C. § 31-34-1-1.
[¶16] The required proof of the statutory CHINS elements "guards against unwarranted State interference in family life, reserving that intrusion for families 'where parents lack the ability to provide for their children,' [and] not merely where they 'encounter difficulty in meeting a child's needs.'" In re D.J., 68 N.E.3d at 580-81 (quoting In re S.D., 2 N.E.3d at 1287). When determining whether the "coercive intervention" of the court is necessary, courts "'should consider the family's condition not just when the case was filed, but also when it is heard.'" Id. (quoting In re S.D., 2 N.E.3d at 1290). "Doing so avoids punishing parents for past mistakes when they have already corrected them." Id. (citing In re S.D., 2 N.E.3d at 1289-90). The focus of a CHINS determination is on the status of the child, not on an act or omission of the parent. See, e.g., In re N.E., 919 N.E.2d at 105-06; In re S.C., 96 N.E.3d 579, 585 (Ind.Ct.App. 2017). A child therefore cannot be a CHINS "based solely on conditions that no longer exist." In re R.S., 987 N.E.2d 155, 159 (Ind.Ct.App. 2013).
[¶17] The trial court's findings in its Order center around the incident that Father "had shot another child in the chest with a BB-Gun, leaving injury to the child. Father had also shot another child with a BB-Gun striking him in the face." (Appellant's App. Vol. II, pp. 28, 63, 96, 129, 161). In support of its Order, the trial court also found determinative Mother's refusal to turn over the video of the home security system, confirming Father's conduct. The trial court mentioned Mother's knowledge that the BB gun was unsecured in the house and Mother's increasing communication problems with DCS as the case progressed. Finally, the trial court relied on several incidents in the previous ten years which had required DCS's involvement with the family.
[¶18] However, while Father unquestionably endangered Children at the time of DCS's initial involvement with the family during the BB gun incident, the circumstance that led to DCS's involvement no longer existed at the time of the CHINS fact-finding hearing because Father was charged with the incident, was in jail and, according to Mother's unchallenged testimony, Mother no longer was in a relationship with Father. Furthermore, although it is undisputed that DCS had a history of involvement with this family dating back ten years, these past incidents are irrelevant to the family's current CHINS determination as they are not related to "the family's condition not just when the case was filed, but also when it is heard.'" Id. (quoting In re S.D., 2 N.E.3d at 1290). Moreover, DCS presented no evidence as to the timeframe of these past events, their circumstances, or if these incidents had even been substantiated as abuse or neglect upon investigation by DCS.
[¶19] While it is generally and statutorily acknowledged that the trial court is not required to issue findings in a CHINS proceeding, we review any issues not covered by the trial court's findings under the general judgment standard, meaning we will affirm a judgment if it can be sustained on any legal theory supported by the evidence. In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). In this light, the record reflects that despite Mother's belief that Father suffered from a mental illness, she elected him as Children's caregiver when she "was in a bind" and needed someone to supervise Children. (Tr. p. 11). Mother's parenting decisions between the moment Father shot Children with the BB gun and Children's removal on September 27, 2023, continued to place Children at risk of harm. Although C.P. had a fresh wound on his chest and disclosed that Father had "shot him with a BB gun and then popped out" the projectile, and P.P. "had the wound on his head, where he had said that [Father] had shot him with the gun," Mother refused to take Children to the hospital for a "PEDS," a medical referral made for children that have specific injuries to head, neck or face. (Tr. p. 13). The other three Children also presented with different cuts, wounds, bruises, in multiple places on their bodies.
[¶20] While Mother initially cooperated with DCS and set up a safety plan, as the assessment continued, Mother's cooperation decreased, and she became difficult to contact. Despite the provisions of the safety plan, Mother failed to follow the instructions ensuring that Children got to school safely and timely. Instead of answering the wake-up call placed by FCM and getting Children ready for the arrival of the school bus or calling the school for the transportation the school had agreed to provide, Mother elected to drive Children to school on a riding lawn mower. During the assessment period, Mother also refused to submit to random drug screens and, after Children's removal from her care, failed to participate in visitation.
[¶21] Mother has refused to engage in family preservation services provisionally, she has not cooperated with the assessment, refused to submit to random drug screens, and failed to follow the safety plans designed to protect Children and to prevent removal. Her refusals and failures to provide Children with a safe environment, medical services, and education seriously endangered Children's physical or mental condition and it is clear that Mother refuses to participate in services unless ordered to do so. Therefore, we support the trial court's determination that the State's parens patriae intrusion is necessary. Accordingly, the trial court's CHINS adjudication is affirmed.
CONCLUSION
[¶22] Based on the foregoing, we conclude that the trial court's adjudication of Children as CHINS is not clearly erroneous.
[¶23] Affirmed.
[¶24] Kenworthy, J. and Felix, J. concur.